1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSEPH CLARENCE EASTMAN, Case No. 1:20-cv-01303-BAM (PC) 11 Plaintiff, ORDER DIRECTING CLERK OF COURT TO

RANDOMLY ASSIGN DISTRICT JUDGE TO

12 v. ACTION 13 TUOLUMNE COUNTY JAIL, et al., FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION, WITH PREJUDICE, FOR

14 Defendants. FAILURE TO STATE A CLAIM, FAILURE

TO OBEY COURT ORDER, AND FAILURE

15 TO PROSECUTE 16 (ECF No. 8) 17 FOURTEEN (14) DAY DEADLINE 18 19 I. Background 20 Plaintiff Joseph Clarence Eastman (“Plaintiff”) is a county jail inmate proceeding pro se 21 and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred 22 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On October 7, 2020, the Court issued a screening order granting Plaintiff leave to file an 24 amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 8.) The 25 Court expressly warned Plaintiff that the failure to comply with the Court’s order would result in 26 a recommendation for dismissal of this action, with prejudice, for failure to obey a court order 27 and for failure to state a claim. (Id. at 10.) The deadline has expired, and Plaintiff has failed to 28 file an amended complaint or otherwise communicate with the Court. 1 II. Failure to State a Claim 2 A. Screening Requirement 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 5 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 6 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 7 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 8 § 1915(e)(2)(B)(ii). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 14 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 15 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 16 To survive screening, Plaintiff’s claims must be facially plausible, which requires 17 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 18 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 19 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 20 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 21 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 22 B. Plaintiff’s Allegations 23 Plaintiff is currently housed at Tuolumne County Jail in Sonora, California where the 24 events in the complaint allegedly arose. Plaintiff names the following defendants: (1) Tuolumne 25 County Jail; (2) Dr. Sun, medical doctor; and (3) Dr. B, unnamed psychiatric doctor. 26 Plaintiff alleges that the Tuolumne County Jail custody staff denied Plaintiff’s right to a 27 second opinion and refused his right to adequate medical care and rushing his recovery after 28 surgery. Plaintiff alleges Dr. Sun neglected proper medical care. 1 Plaintiff alleges he has P.T.S.D., anxiety and night errors. The psychiatrist, Dr. B., video 2 chatted with Plaintiff. He prescribed “prazosin” or “mini press” for night terrors. He did not 3 counsel Plaintiff regarding any of the side effects. On June 23, 2020, Plaintiff woke up to pain in 4 his penis and had an erection. This was one of many, but this one lasted longer than 12 hours. 5 Plaintiff put in medical requests and when he saw the nurses, they said Plaintiff had to wait for 6 the doctor to arrive as he had limited hours. When Plaintiff saw the doctor, he said the erection 7 would go down. Plaintiff asked if it was due to the medication or Plaintiff’s prostrate. Doctor did 8 tests on Plaintiff’s prostrate, which turned out fine. 9 Plaintiff saw nurse Debbie who recommended that Plaintiff go to the E.R. at Adventist 10 Health. Plaintiff went to the hospital. He was put in a dirty holding cell with a camera on him to 11 make sure he was not touching himself to keep the erection. Plaintiff was in the holding cell for 12 2.5 hours, which was 44.5 hours with an erection. He was transported to the E.R. by a deputy and 13 at the hospital, the staff was helpful. The M.D. at the ER said it was because of the “mini press” 14 medication. Plaintiff was told that they had to drain some of blood in the penis with a syringe. 15 They tried 2 times without success. 16 Plaintiff was transported to San Jose Regional Medical Center for surgery. The surgeon, 17 James Hwong, M.D. told Plaintiff that he would most likely never get an erection again naturally. 18 Surgery was performed – debridement and repair and penile shunt – for a total of 53 hours erect, 19 with damage to the tissue in his penis. 20 Plaintiff was transported back to jail, immediately after waking from anesthesia, and 21 placed in a dirty single cell. Medical staff at the jail examined him and when Plaintiff returned to 22 his single cell, he was bleeding from his penis. 23 A deputy saw the blood and escorted Plaintiff to medical, then to the ER at Adventist 24 Health. The suture had come apart and the M.D. at the ER repaired the suture. Plaintiff was 25 transported back to jail. The bandages were changed, but were stopped and when Plaintiff 26 continued to bleed, the bandages were put back on. 27 The surgeon had said that Plaintiff was to return for follow up 24-48 hours after surgery, 28 but it was not until 3-4 weeks for the jail to take Plaintiff back for his follow up. Plaintiff has 1 been told that he suffers from erectile dysfunction for life. He as a scar and pain in his penis. 2 Plaintiff alleges he is 37 years old and will have a lifetime of pain and suffering and requests 3 compensatory damages. 4 C. Discussion 5 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 6 state a cognizable claim under 42 U.S.C. § 1983. 7 1. Federal Rule of Civil Procedure 8 8 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 9 statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 11 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 12 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 14 at 570). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 15 Twombly, 550 U.S. at 556–57. 16 Although Plaintiff's complaint is short, it is not a plain statement of his claims. As a basic 17 matter, the complaint does not clearly state what happened, when it happened or who was 18 involved. It is unclear which doctor he is referring to at various times in the complaint and which 19 doctor Plaintiff contends violated his constitutional rights. It is unclear if he is trying to name 20 individual jail staff or medical personnel at the hospital. 21 2. Linkage Requirement 22 The Civil Rights Act under which this action was filed provides:

23 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or 24 immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 25 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 26 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 27 Monell v. Dep’t of Soc. Servs., 436 U.S. 658; Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth 28 1 Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional right, 2 within the meaning of section 1983, if he does an affirmative act, participates in another’s 3 affirmative acts or omits to perform an act which he is legally required to do that causes the 4 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 Plaintiff’s complaint fails to adequately link the defendants to alleged constitutional 6 violation. The Court cannot determine which of the doctors is Dr. Sun and which doctors 7 allegedly violated his constitutional rights. Further, to the extent Plaintiff is attempting to name 8 individual jail staff, he must list the individuals as defendants and include allegations of how each 9 person violated Plaintiff’s constitutional rights. 10 3. Tuolumne County Jail 11 Defendant names Tuolumne County Jail as a defendant. 12 Under section 1983 a local government unit may not be held responsible for the acts of its 13 employees under a respondeat superior theory of liability. Monell v. Dep’t of Soc. Servs., 436 14 U.S. 658, 691 (1978). Rather, a local government unit may only be held liable if it inflicts the 15 injury complained of through a policy or custom. Waggy v. Spokane Cty. Wash., 594 F.3d 707, 16 713 (9th Cir. 2010). 17 To state a claim, “[i]t is not sufficient for a plaintiff to identify a custom or policy, 18 attributable to the municipality, that caused his injury. A plaintiff must also demonstrate that the 19 custom or policy was adhered to with ‘deliberate indifference’ ” to his constitutional rights. 20 Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016), cert. denied sub nom., Los 21 Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017). The deliberate indifference standard is 22 satisfied where a plaintiff alleges facts available to the municipality’s policymakers that “put 23 them on actual or constructive notice that the particular omission is substantially certain to result 24 in the violation of the constitutional rights of their citizens.” Castro, 833 F.3d at 1076. 25 Here, Plaintiff has not linked any alleged violation of his rights to a policy or practice 26 attributable to the Tuolumne County Jail, nor has he provided facts to support that Tuolumne 27 County Jail knew of, and blatantly ignored, the alleged violations committed by its employees. 28 Therefore, Plaintiff has failed to state a cognizable claim against the Tuolumne County Jail. 1 4. Eighth Amend Fourteenth Amendments – Medical Care 2 It is unclear whether Plaintiff was a pretrial detainee or convicted prisoner during the 3 relevant time period. To the extent that Plaintiff was a pretrial detainee during the relevant time 4 period, his claims concerning the conditions of his confinement or deprivation of a medical care 5 arise under the Fourteenth Amendment’s Due Process Clause rather than the Eighth Amendment. 6 See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting that “the Due Process Clause rather 7 than the Eighth Amendment” is relied on in considering claims of pretrial detainees because 8 “Eighth Amendment scrutiny is appropriate only after the State has complied with the 9 constitutional guarantees traditionally associated with criminal prosecutions”); Kingsley v. 10 Hendrickson, 135 S. Ct. 2466, 2473 (2015) (“We have said that the Due Process Clause protects a 11 pretrial detainee from the use of excessive force that amounts to punishment.” (internal quotation 12 marks omitted)). 13 The Ninth Circuit has held that “the proper standard of review” for claims of inadequate 14 medical care for pretrial detainees is “objective indifference.” Gordon v. Cty. of Orange, 888 15 F.3d 1118, 1120, 1124–25 (9th Cir. 2018) (extending the “objective deliberate indifference 16 standard” articulated in Castro to inadequate medical care); see also Horton v. City of Santa 17 Maria, 915 F.3d 592, 602 (9th Cir. 2019) (noting that Gordon “recognized that Castro’s objective 18 deliberate indifference standard extends to Fourteenth Amendment claims by pretrial detainees 19 for violations of the right to adequate medical care”). 20 Accordingly, in order to state a claim against any defendant for denial of medical care 21 while a pretrial detainee, plaintiff must allege that the defendant: (1) “made an intentional 22 decision with respect to the conditions under which the plaintiff was confined”; (2) the 23 “conditions put the plaintiff at substantial risk of suffering serious harm”; (3) the “defendant did 24 not take reasonable available measures to abate that risk, even though a reasonable official in the 25 circumstances would have appreciated the high degree of risk involved—making the 26 consequences of the defendant’s conduct obvious”; and (4) “by not taking such measures, the 27 defendant caused the plaintiff’s injuries.” Gordon, 888 F.3d at 1125. 28 /// 1 Plaintiff alleges that Dr. B prescribed medications which caused prolonged erections. 2 Plaintiff alleges he had multiple prolonged erections but there is no allegation that Dr. B. “did not 3 take reasonable available measures to abate that risk, even though a reasonable official in the 4 circumstances would have appreciated the high degree of risk involved—making the 5 consequences of the defendant's conduct obvious” or that “by not taking such measures, the 6 defendant caused the plaintiff's injuries.” Plaintiff does not allege Dr. B knew of the side effects 7 to Plaintiff and failed to take reasonable measures to able that risk. 8 As to Dr. Sun, assuming he is the doctor who Plaintiff saw Plaintiff at the jail before 9 surgery, Plaintiff fails to state a cognizable claims. When Plaintiff complained about the erection, 10 this doctor did tests on Plaintiff’s prostrate, to rule out prostrate medical issue. Plaintiff does not 11 allege this conduct was objectively unreasonable. The defendant’s conduct must be objectively 12 unreasonable, a test that will necessarily “turn[ ] on the facts and circumstances of each particular 13 case.” Gordon, 888 F.3d at 1125 (quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 14 (9th Cir. 2016).) “ ‘[M]ere lack of due care by a state official’ does not deprive an individual of 15 life, liberty, or property under the Fourteenth Amendment.” Gordon, 888 F.3d at 1125. 16 Therefore, the plaintiff must “prove more than negligence but less than subjective intent— 17 something akin to reckless disregard.” Id. 18 There is nothing to suggest that any individual defendant made an intentional decision that 19 put Plaintiff at substantial risk for suffering any harm. 20 5. Doe Defendants 21 Plaintiff is informed if he does not know the name of Defendant “Dr. B,” he may name the 22 defendant as John Doe. But, the use of John Does in pleading practice is generally disfavored. 23 See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 24 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp. 2d 1149, 1152 (E.D. Cal. 2008). 25 Plaintiff is hereby advised that the court cannot order service of a Doe defendant because the 26 United States Marshal cannot serve a Doe defendant. Plaintiff will be required to identify him or 27 her with enough information to locate the defendant for service of process. For service to be 28 successful, the Marshal must be able to identify and locate defendants. Once the identify of a 1 Doe defendant is ascertained, Plaintiff must file a motion to amend his complaint only to identify 2 the identified Doe defendant so that service by the United States Marshal can be attempted. 3 6. State Law Claims 4 Plaintiff appears to allege a state law tort claim for medical malpractice. Under 28 U.S.C. 5 § 1367(a), in any civil action in which the district court has original jurisdiction, the “district 6 courts shall have supplemental jurisdiction over all other claims that are so related to claims in the 7 action within such original jurisdiction that they form part of the same case or controversy under 8 Article III of the United States Constitution,” except as provided in subsections (b) and (c). The 9 Supreme Court has stated that “if the federal claims are dismissed before trial, . . . the state claims 10 should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). 11 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff 12 must first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367. As Plaintiff 13 has not stated a cognizable claim for relief under federal law, it is recommended that the Court 14 decline to exercise supplemental jurisdiction over Plaintiff’s state law claims. 15 Further, the Government Claims Act requires exhaustion of Plaintiff's state law tort claims 16 with the California Victim Compensation and Government Claims Board, and Plaintiff is required 17 to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 18 201, 208–09 (Cal. 2007); State v. Superior Court of Kings Cty. (Bodde), 32 Cal. 4th 1234, 1239 19 (Cal. 2004); Mabe v. San Bernardino Cty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th 20 Cir. 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); 21 Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has 22 failed to allege compliance with the Government Claims Act. 23 III. Failure to Prosecute and Failure to Obey a Court Order 24 A. Legal Standard 25 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 26 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 27 within the inherent power of the Court.” District courts have the inherent power to control their 28 dockets and “[i]n the exercise of that power they may impose sanctions including, where 1 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 2 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 3 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 4 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 5 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 6 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 7 (dismissal for failure to comply with court order). 8 In determining whether to dismiss an action, the Court must consider several factors: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 10 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 11 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 12 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 13 B. Discussion 14 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 15 Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 16 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 17 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 18 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 19 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 20 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 21 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 22 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 23 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 24 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 25 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 26 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 27 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s October 7, 2020 screening 28 order expressly warned Plaintiff that his failure to file an amended complaint would result in a 1 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 2 for failure to state a claim. (ECF No. 8, p. 10.) Thus, Plaintiff had adequate warning that 3 dismissal could result from his noncompliance. 4 Additionally, at this stage in the proceedings there is little available to the Court that 5 would constitute a satisfactory lesser sanction while protecting the Court from further 6 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 7 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 8 likely to have no effect given that Plaintiff has ceased litigating his case. 9 IV. Conclusion and Recommendation 10 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 11 district judge to this action. 12 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 13 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim 14 pursuant to 28 U.S.C. § 1915A, for failure to obey a Court order, and for Plaintiff’s failure to 15 prosecute this action. 16 These Findings and Recommendation will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 18 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 19 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 20 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 21 specified time may result in the waiver of the “right to challenge the magistrate’s factual 22 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 23 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

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25 Dated: November 19, 2020 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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