STANLEY A. BOONE, Magistrate Judge.
Plaintiff Archie Cranford is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison Litigation Reform Act.
Plaintiff consented to the United States Magistrate Judge jurisdiction. Defendant has not consented or declined magistrate judge jurisdiction. Therefore, this action was referred to the undersigned pursuant to pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Currently before the Court is Defendant Okpala's motion for an order declaring Plaintiff a vexatious litigant, requiring security, and issuance of a pre-filing order, filed July 28, 2016.
This action proceeds against Defendant Antonia Okpala for deliberate indifference to Plaintiff's medical condition in violation of the Fourteenth Amendment.
Defendant filed an answer to Plaintiff's second amended complaint on January 19, 2016. On January 27, 2016, the Court issued the discovery and scheduling order.
As previously stated, on July 28, 2016, Defendant filed a motion for an order declaring Plaintiff a vexatious litigant. Despite being served with the motion, Plaintiff did not file an opposition.
Defendant Okpala seeks to have Plaintiff declared a vexatious litigant under California law and ordered to post security under Local Rule 151(b) of the Eastern District of California, which provides:
Thus, in ordering a party to give security under Local Rule 151(b), the Court must determine that (1) the party is a vexatious litigant and (2) there is not a reasonable probability that the party will prevail pursuant to California Civil Procedure Code section 391.1, which provides:
Cal. Civ. Proc. Code § 391.1.
In relevant part, a vexatious litigant is defined under California law as one who "[h]as previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction or occurrence." Cal. Civ. Proc. Code § 391(b)(4). As requested by Defendant, the Court takes judicial notice the Court's order in 1:14-cv-00055-AWI-MJS (PC),
The commonly accepted meaning of the phrase "substantially similar" as used in section 391(b)(4) has been interpreted to apply, and subdivision (b)(4) is satisfied if this case and case number 1:14-cv-00055-AWI-MJS (PC),
Accordingly, the Court finds that Plaintiff was previously declared a vexatious litigant by this Court in 1:14-cv-00055-AWI-MJS (PC),
Next, the Court must also find that Plaintiff does not have a reasonable probability of prevailing in this case. Cal. Civ. Proc. Code § 391.3. This requires "the defendant [to] show that the plaintiff's recovery is foreclosed as a matter of law or that there are insufficient facts to support recovery by the plaintiff on its legal theories, even if all the plaintiff's facts are credited."
This action is proceeding on Plaintiff's Fourteenth Amendment medical care claim and the core judicial inquiry is whether the defendant knowingly disregarded a substantial risk of harm to Plaintiff's health. As a civil detainee, Plaintiff is entitled to treatment more considerate than that afforded pretrial detainees or convicted criminals.
While Plaintiff may be "entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish," the Constitution requires only that courts ensure that professional judgment was exercised.
Applying these standards, the Court finds that Plaintiff has failed to demonstrate that he has a reasonable probability of succeeding in this action.
In the operative complaint, Plaintiff contends that in 2012, Defendant Okpala locked the housing unit door after receiving a phone call from the hospital's dining hall informing Defendant that Plaintiff had just had scolding hot split pea soup poured in his lap and was suffering from severe burns. Defendant locked the unit door in an effort to prevent Plaintiff treatment for his injuries. Plaintiff approached the Defendant on several occasions regarding his injuries from the burn and each time he was refused. Plaintiff did not file an opposition, and his evidence is therefore limited to the allegations raised in the complaint.
Defendant submits evidence of her declaration, Plaintiff's deposition testimony, and Plaintiff's medical records in support of her argument that Plaintiff does not have a reasonable probability of prevailing on his claim.
As an initial matter, the allegations in the second amended complaint allege that Defendant Okpala's alleged actions took place in 2012; however, Nurse Okpala declares that she did not become employed at Coalinga State Hospital until February 3, 2014. (Okpala Decl. ¶ 2, ECF No. 47.) Thus, based on Okpala's declaration it was not possible that the acts alleged in the second amended complaint occurred in 2012 by Defendant Okpala because she was not even working at Coalinga State Hospital then.
Second, at this deposition, Plaintiff testified that the soup incident occurred at lunch, but he does not remember the exact date of the soup incident and does not remember the year. (Phillips Decl., Ex. A (Plaintiff Dep.) at 20:9-20.) Plaintiff indicated only that "it's been a while," and "maybe" two years. (
June 20, 2014, was a Friday—not a Tuesday.
Third, Plaintiff's deposition testimony raises evidentiary questions as to his claim for relief against Defendant Okpala. At his deposition, Plaintiff testified that his claim is based on hearsay evidence. Plaintiff testified that he was "informed that the PDR [patient dining room] had called the unit," and that Nurse Okpala "locked the door . . . so I was told." (Plaintiff Dep. at 22:25-3.) Plaintiff could not identify who told him, and merely stated "another staff member," "a float," and could not provide a name because he did "not pay attention to floats." (
Furthermore, at his deposition, Plaintiff clarified that the basis of his medical claim against Nurse Okpala is that when a psych tech took him to see a nurse, Nurse Okpala saw him and took off to an unknown location. (Plaintiff Dep. at 25.) Plaintiff clarified that he is suing Defendant Nurse Okpala because:
(Plaintiff Dep. at 44:5-11.) Although Plaintiff claims he was denied adequate medical attention by Nurse Okpala, he testified that there were two nurses present and he was seen by the other nurse. (
Lastly, the records submitted by Defendant indicate it was Plaintiff who refused medical treatment on June 20, 2014. The Interdisciplinary note of Psych Tech (PT) Pullin on June 20, 2014, indicates that Plaintiff "approached RN in the unit hallway and reported he had unobserved spill in the PDR [Patient Dining Hall]," claiming that "he spilled hot soup on the left side of his chest and was burned." (Phillips Decl., Ex. B. at p. 3.) PT Pullin noted that the "RN attempted to assess" Plaintiff two times, "and both times assessments were refused." (
The notes written by Registered Nurse ("RN") Narceda on June 20, 2014, at 12:40, state that "at approximately 1230," Plaintiff approached her "in the hallway and stated `I got burned by soup.'" (Phillips Decl., Ex. B at p. 4.) Narceda asked Plaintiff where he got burned, but he simply "walked away." (
At approximately 12:45 p.m., another registered nurse observed a thick "soup like" stain on the left side of Plaintiff's shirt and pants. (Phillips Decl., Ex. B. at p. 5.) When the RN asked to see Plaintiff's skin, he stated, "common sense will tell you that it is red." (
At 1427 hours on June 20, 2014, Plaintiff was observed by PT Palos after showing, post the soup spill. (Phillips Decl., Ex. B at p. 6.) Plaintiff was dressed in boxer shorts and was observed to have no redness or pink altered coloring of his skin. (
Minutes later at 1440 hours, a different registered nurse conducted a follow up and again offered a nursing assessment, but Plaintiff declined stating, "I don't need to be assessed by you guys." (Phillips Decl., Ex. B at p. 7.) When prompted to see a doctor, Plaintiff responded that he did not want to see the doctor calling him "a quack." (
The next day, at 1925 hours, RN Narceda conducted a follow-up. (Phillips Decl., Ex. B. at pp. 7-9.) Plaintiff agreed to a skin assessment of the areas on which he claimed to have spilled the soup. RN Narceda's assessment noted the skin was "intact, no redness or skin discoloration noted on left lower abdomen and left thigh areas." (
Based on the foregoing evidence, it is not likely that Plaintiff will succeed on the merits of his claim against Defendant Okpala. Accordingly, the Court recommends that Defendant's motion for an order requiring Plaintiff to furnish security be granted.
In this instance, Defendant asks that Plaintiff be required to post security in the amount of not less than $31,195.00. Defense counsel submits that he has already spent roughly 83.25 hours defending this matter. (Phillips Decl. ¶¶ 4-5; Whitney Decl. ¶ 4.) At the Attorney General's standard billing rates, this case has cost the Department of State Hospitals and state taxpayers at least $14,195.00 to date. (Phillips Decl. ¶¶ 4, 7; Ex. C.) Defendant submits that additional fees will be incurred in filing a reply for this motion. Defendant further expects to incur at least $17,000.00 in additional attorney's fees and other case-related costs, especially with a pending trial date. (Phillips Decl. ¶ 8.)
"`Security' means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant." Cal. Civ. Proc. Code § 391(c).
The Court finds that $14,195.00 is supported by the evidence submitted by Defendant and is a conservative estimate of the amount expended to date. (Phillips Decl. ¶¶ 2-7; Whitney Decl. ¶ 4;
Based on the foregoing, it is HEREBY RECOMMENDED that Defendants' motion for an order requiring Plaintiff to post security is GRANTED in the amount of $14,195.00 pursuant to Local Rule 151(b).
This Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
IT IS SO ORDERED.