EILEEN S. WILLETT, Magistrate Judge.
This is a civil rights action filed pro se by state prisoner Jason Marlin Crook ("Plaintiff") pursuant to 42 U.S.C. § 1983. The following discussion sets forth the Court's rulings on a number of pending motions.
In their January 12, 2017 Motion (Doc. 65), Defendants assert that ARIZ. REV. STAT. § 12-2603 applies to Plaintiff's Eighth Amendment medical care claim brought pursuant to 42 U.S.C. § 1983.
ARIZ. REV. STAT. § 12-2603(A) provides that "[i]f a claim against a health care professional is asserted in a civil action, the claimant . . . shall certify in a written statement that is filed and served with the claim . . . whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim." The statute defines the term "claim" as follows:
ARIZ. REV. STAT. § 12-2603(H)(1).
Under ARIZ. REV. STAT. § 12-2603(D), if the claimant certifies that expert testimony is not required for the claim and the health care professional disputes that certification in good faith, the health care professional may move the court for an order requiring the claimant to obtain and serve a preliminary expert opinion affidavit.
Plaintiff did not file and serve on Defendants a certification under ARIZ. REV. STAT. § 12-2603(A) when Plaintiff initiated this action. Defendants have construed Plaintiff's omission as an assertion that expert testimony is not required. (Doc. 65 at 5). Defendants seek an order under ARIZ. REV. STAT. § 12-2603(D) compelling Plaintiff to file an expert opinion affidavit.
Contrary to Defendants' contention, "[f]or purposes of a federal civil rights claim under 42 U.S.C. § 1983, the Arizona legislature may not impose additional procedural requirements on litigants." Stewart v. Central Arizona Correctional Facility, No. CV 09-0674-PHX-MHM (ECV), 2010 WL 1814671, at *3 (D. Ariz. May 5, 2010) (denying motion to dismiss pro se prisoner's Section 1983 action for failure to comply with ARIZ. REV. STAT. § 12-2603); see also Felder v. Casey, 487 U.S. 131 (1988) (holding that state notice of claim statute does not apply to Section 1983 claims brought in either federal or state court); Sethy v. Alameda County Water Dist., 545 F.2d 1157, 1162 (9th Cir. 1976) ("[A] plaintiff seeking in federal court to vindicate a federally created right cannot be made to jump through the procedural hoops for tort-type cases that may have commended themselves to the legislative assemblies of the several states."); Ney v. California, 439 F.2d 1285, 1287 (9th Cir. 1971) (holding that the California Tort Claims Act does not apply to a prisoner's claims under the Civil Rights Act); Willis v. Reddin, 418 F.2d 702, 704-05 (9th Cir. 1969) ("California may not impair federally created rights or impose conditions upon them."); Endsley v. Luna, 750 F.Supp.2d 1074, 1108 (C.D. Cal. 2010) ("Although state law does not apply to Plaintiff's federal claims-that is, his claims brought under 42 U.S.C. § 1983-state law, including `state-imposed procedural conditions to sue,' applies to his state tort claims.") (emphasis in original).
In support of their Motion to Compel (Doc. 65), Defendants cite Amor v. Arizona, No. CV-06-499-TUC-CKJ, 2010 WL 960379 (D. Ariz. Mar. 15, 2010). However, the Court in Amor held that ARIZ. REV. STAT. § 12-2603(A) applied to
For the above reasons, the Court finds that ARIZ. REV. STAT. § 12-2603 does not apply to Plaintiff's Eighth Amendment claim brought pursuant to 42 U.S.C. § 1983. Defendants' "Motion to Compel Expert Affidavit Pursuant to A.R.S. § 12-2603(D)" (Doc. 65) will be denied. Defendants' "Motion to Stay Proceedings Pursuant to A.R.S. § 12-2603(E)" (Doc. 65) will be denied as moot.
On October 6, 2016, Plaintiff timely filed a "Motion for Leave to File a Second Amended Complaint" (Doc. 36). Attached to the Motion (Doc. 36) is a proposed Second Amended Complaint (Doc. 36-1). The proposed Second Amended Complaint complies with LRCiv 15.1 as it indicates in what respect it differs from the First Amended Complaint (Doc. 23). Defendants have not responded to Plaintiff's "Motion for Leave to File a Second Amended Complaint" (Doc. 36). See LRCiv 7.2(i).
Federal Rule of Civil Procedure 15(a) provides that "leave [to amend a pleading] shall be freely given when justice so requires." "The power to grant leave to amend . . . is entrusted to the discretion of the district court, which `determines the propriety of a motion to amend by ascertaining the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.'" Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (quoting William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009)). "Generally, this determination should be performed with all inferences in favor of granting the motion." Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).
The Court will grant Plaintiff's unopposed "Motion for Leave to File a Second Amended Complaint" (Doc. 36). The Court will direct the Clerk of Court to file the proposed Second Amended Complaint (Doc. 36-1) attached to Plaintiff's Motion.
On December 27, 2016, Plaintiff filed a "Motion for Leave to File Third Amended Complaint" (Doc. 62). Attached to the Motion (Doc. 62) is a proposed Third Amended Complaint (Doc. 62-1), which indicates in what respect it differs from the First Amended Complaint. Defendants have not responded to Plaintiff's "Motion for Leave to File Third Amended Complaint" (Doc. 62). See LRCiv 7.2(i). Although Plaintiff moved for leave to file the Third Amended Complaint after the December 16, 2016 deadline set forth in the Court's Scheduling Order (Doc. 40 at 4), the Court finds that Plaintiff has shown good cause for the brief delay.
In the First Amended Complaint (Doc. 23), Plaintiff named one "Jane Doe" Defendant and two "John Doe" Defendants. In its August 3, 2016 Order, the Court granted Plaintiff's request to substitute the fictitious moniker "Jane Doe" with the actual name "Donna James." (Doc. 28 at 1, 5). As to the two "John Doe" Defendants, the Court explained that "the use of anonymous type appellations to identify defendants is not favored." (Id. at 3). The Court dismissed without prejudice the "John Doe" Defendants and stated that "[i]f Plaintiff discovers the true identity of these fictitious parties through the discovery process, or otherwise, he may seek leave of the Court to amend his complaint to name the individuals in place of the fictitious monikers." (Id.). The Court found that the First Amended Complaint sufficiently alleged an Eighth Amendment medical care claim in Count One, and a First Amendment retaliation claim in Count Two. (Id.). The Court required all Defendants except the two dismissed "John Doe" Defendants to answer the First Amended Complaint. (Id. at 5).
The lodged Third Amended Complaint (Doc. 62-1) (i) replaces the fictitious moniker "Jane Doe" with "Donna James"; (ii) replaces the fictitious moniker "Dr. John Doe #1" with the name "Angela Nze"; (iii) replaces the fictitious moniker "John Doe #2" with the name "Ronnie Cato"; (iv) adds allegations in Count One against Defendants Nze and Cato; (v) adds Count Three, which alleges a First Amendment retaliation claim against Katrina Johnson, who is added as a ninth Defendant; (v) corrects a date in Count One; (vi) adds the last name of a witness in the Supporting Facts section in Count Two; and (vii) adds case law to the "Memorandum of Law" following Counts One, Two, and Three.
In reviewing Plaintiff's Third Amended Complaint, the Court must accept as true all well-pled factual allegations and draw all reasonable inferences therefrom. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296-98 (9th Cir. 1998). A claim for relief must be plausible on its face to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 679. The following discusses the legal standards pertaining to Eighth Amendment medical claims and First Amendment retaliation claims, which are raised in the Third Amended Complaint.
Not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth Amendment. To state a Section 1983 medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of acts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Id.; Estelle, 429 U.S. at 104-05.
Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Farmer, 511 U.S. at 835. "Neither negligence nor gross negligence will constitute deliberate indifference." Clement v. California Dep't of Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of indifference," "negligence," or "medical malpractice" do not support a claim under § 1983). "A difference of opinion does not amount to deliberate indifference to [a plaintiff's] serious medical needs." Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 105.
"Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so." Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2013). To state a constitutional claim for retaliation, a plaintiff must allege that a defendant acting under color of state law took adverse action against him because he engaged in protected conduct, the adverse action was not narrowly tailored to advance legitimate goals, and the adverse action chilled the plaintiff's exercise of his First Amendment rights or caused him to suffer more than minimal harm. Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims require an inmate must show (i) that the prison official acted in retaliation for the exercise of a constitutionally-protected right, and (ii) that the action "advanced no legitimate penological interest").
Count One of the Third Amended Complaint names as additional Defendants Angela Nze and Ronnie Cato, who are nurses. Plaintiff alleges that Defendants Nze and Cato refused to administer Plaintiff's prescribed medications and allowed Plaintiff to suffer symptoms that were caused by the failure to receive the medications. (Doc. 62-1 at 10-11, 14). Plaintiff also alleges that Defendants Nze and Cato refused to administer Plaintiff's medication in retaliation for the grievances and lawsuit that Plaintiff filed. (Id.). Liberally construed, the Court finds that Count One adequately states an Eighth Amendment medical claim and a First Amendment retaliation claim against Defendants Nze and Cato. Defendants will be required to answer the Third Amended Complaint for the reasons explained in the Court's August 3, 2016 Order (Doc. 28 at 3-4).
Plaintiff has not amended Count Two of the First Amended Complaint. The Court will order Defendants to answer Count Two of the Third Amended Complaint for the reasons explained in the Court's August 3, 2016 Order (Id.).
Count Three of the Third Amended Complaint raises a First Amendment retaliation claim against Defendant Johnson, who is the Family Health Administrator at the prison complex in which Plaintiff is incarcerated. (Doc. 62-1 at 17). Plaintiff states that Defendant Johnson is the medical grievance coordinator and is responsible for investigating and resolving inmate grievances. (Id.). Plaintiff alleges that Defendant Johnson is intentionally not responding to Plaintiff's grievances, has refused to retrieve information from Plaintiff's medical file, and has refused to provide Plaintiff with requested information that Plaintiff needs to address his medical concerns. (Id. at 17-18). According to Plaintiff, Defendant Johnson "specifically stated she would not provide information to [Plaintiff] because of [Plaintiff's] lawsuit." (Id. at 18). Plaintiff asserts that Defendant Johnson has hindered his abilities to seek redress of grievances and has "severely" hindered his ability to effectively litigate his lawsuit. (Id.).
Liberally construed, the Court finds that Count Three adequately states a First Amendment retaliation claim against Defendant Johnson.
In his "Motion to Extend the Discovery Deadline" (Doc. 70), Plaintiff requests a thirty-day extension of the March 17, 2017 discovery deadline. Defendants have not responded to Plaintiff's request. See LRCiv 7.2(i). For good cause shown, the Court will grant Plaintiff's Motion (Doc. 70). The Court will extend the discovery deadline to April 17, 2017 and the dispositive motion deadline to May 17, 2017.
In their February 2, 2017 Motion (Doc. 77), Defendants request leave of the Court to either (i) file a dispositive motion that exceeds the seventeen-page limit set forth in LRCiv 7.2(e)(1) or (ii) file more than one dispositive motion. Plaintiff has not responded to Defendants' request. See LRCiv 7.2(i). For good cause shown, the Court will grant Defendants' Motion (Doc. 77) as follows: Defendants may file one dispositive motion that does not exceed twenty-seven pages.
On January 26, 2017, the Court denied Plaintiff's request for the appointment of counsel. (Doc. 75). The Court has reviewed Plaintiff's "Motion to Appoint Counsel" (Doc. 84) filed on February 21, 2017. Plaintiff requests that the Court appoint counsel for the purpose of obtaining an expert opinion affidavit. Plaintiff has again failed to demonstrate a likelihood of success on the merits and has failed to show that he is experiencing difficulty in litigating this case because of the complexity of the issues involved. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) ("[A] court may under `exceptional circumstances' appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). . . . When determining whether `exceptional circumstances' exist, a court must consider `the likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.'") (citations omitted). The Court determines that this case does not present exceptional circumstances requiring the appointment of counsel.
1. The Clerk of Court shall send Plaintiff a service packet including the Third Amended Complaint, this Order, and a copy of the Marshal's Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver of Service of Summons form for Defendants Nze, Cato, and Johnson.
2. Plaintiff shall complete
3. If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Third Amended Complaint on a Defendant within 90 days of the filing of the Third Amended Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).
4. The United States Marshal shall retain the Summons, a copy of the Third Amended Complaint, and a copy of this Order for future use.
5. The United States Marshal must notify Defendants Nze, Cato, and Johnson of the commencement of this action and request waiver of service of the summons pursuant to Fed. R. Civ. P. 4(d). The notice to Defendants must include a copy of this Order. The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must:
(a) Personally serve copies of the Summons, Third Amended Complaint, and this Order, upon Defendants pursuant to Fed. R. Civ. P. 4(e)(2); and
(b) Within 10 days after personal service is effected, file the return of service for Defendants, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendants. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Third Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendants pursuant to Fed. R. Civ. P. 4(d)(2), unless otherwise ordered by the Court.
6.
7. Defendants must answer the Third Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Fed. R. Civ. P. 12(a).
8. Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed.
Re: Service Packet for:
Enclosed is a copy of the Court's Order directing the U.S. Marshal to effect service on your behalf. Also enclosed are U.S. Marshal service form(s) (USM-285), a Notice of Lawsuit & Request for Waiver of Service of Summons form(s) and a set of examples for your use and information. To complete service, you must prepare and return the following items:
DO NOT PREPARE ANY SERVICE FORMS FOR PARTIES DISMISSED FROM THE ACTION.
Upon receipt of the properly completed forms, your Complaint will be processed for service. FAILURE TO PROPERLY PREPARE AND SIGN YOUR SERVICE FORMS MAY RESULT IN DELAY IN EFFECTING SERVICE. A Notice of Availability of a United States Magistrate Judge Consent form is also included. This form is to be returned to our office ONLY after all parties have appeared and agreed to the consent.
