Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH DEAN, Case No.: 25cv2296-RSH-JLB CDCR #AD-6708, 12 ORDER: Plaintiff, 13 v. (1) SCREENING SECOND 14 AMENDED COMPLAINT, and DR. TRI LUU and CHIEF MEDICAL 15 EXECUTIVE S. ROBERTS, (2) DIRECTING U.S. MARSHAL TO 16 Defendants. EFFECT SERVICE OF SECOND 17 AMENDED COMPLAINT AND SUMMONS PURSUANT TO 28 18 U.S.C. § 1915(d) & Fed. R. Civ. P. 19 4(c)(3) 20 21 22 On August 28, 2025, plaintiff Keith Dean, a state inmate incarcerated at the Richard 23 J. Donovan Correctional Facility (“RJD”) in San Diego, California, proceeding pro se, filed 24 a civil rights Complaint pursuant to 42 U.S.C. § 1983 claiming deliberate indifference to a 25 serious heart condition in violation of the Eighth Amendment. ECF No. 1 at 8–9. On 26 December 12, 2025, the Court granted Plaintiff leave to proceed in forma pauperis and 27 dismissed the Complaint with leave to amend for failure to state a claim pursuant to the 28 screening provisions of 28 U.S.C. §§ 1915(e)(2) & 1915A(b). ECF No. 7. Plaintiff then 1 filed a First Amended Complaint which the Court also dismissed with leave to amend for 2 failure to state a claim. ECF Nos. 8; 9. Plaintiff has now filed a Second Amended 3 Complaint (“SAC”). ECF No. 10. The Court finds the SAC plausibly alleges an Eighth 4 Amendment deliberate indifference claim against defendants Chief Medical Executive S. 5 Roberts and Dr. Tri Luu and directs service of the summons and SAC by the U.S. Marshals 6 Service (“USMS”). 7 I. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 8 A. Standard of Review 9 Because Plaintiff is a prisoner proceeding in forma pauperis, his SAC requires a pre- 10 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua 11 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 12 malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez 13 v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); 14 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 18 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 19 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 20 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 21 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 22 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 23 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether 24 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 25 the reviewing court to draw on its judicial experience and common sense.” Id. 26 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 27 acting under color of state law, violate federal constitutional or statutory rights.” 28 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 1 source of substantive rights, but merely provides a method for vindicating federal rights 2 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quote 3 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 4 of a right secured by the Constitution and laws of the United States, and (2) that the 5 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 6 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 7 B. Allegations in the SAC 8 Plaintiff alleges that on October 26, 2023, he “experienced emergency heart attack 9 symptoms and fell to the ground.” ECF No. 10 at 4. He was seen at the medical clinic by 10 defendant Dr. Luu. Id. Plaintiff informed Dr. Luu that he had previously died of a heart 11 attack and had been revived, that he was now experiencing the same symptoms, including 12 extreme chest pain, shortness of breath, tingling of his arms, and lightheadedness, and 13 requested transportation to a hospital. Id. Dr. Luu allegedly told Plaintiff: “I don’t care. 14 You’re just a convict. When convicts can’t get Spice, you lie to get free drugs from medical. 15 There’s no way I’m sending you to hospital. You’re going back to the yard.” Id. Plaintiff 16 pleaded with Dr. Luu to send him to a hospital, “additionally disclosing that he had multiple 17 ablation medical procedures and was prescribed heart medication in [an] attempt to receive 18 the higher level of specialty-cardiology course of medical treatment necessary.” Id. Dr. 19 Luu allegedly stated: “I don’t care that your symptoms are connected to your other heart 20 attack. No hospital. No free drugs. Go back to the yard now.” Id. at 5. 21 On December 29, 2023, Plaintiff experienced the same “emergency heart attack 22 symptoms” as before and told Dr. Luu that if he did not send him to a hospital he was going 23 to have another heart attack. Id. at 6. Dr. Luu allegedly responded: “Like I told you before 24 I don’t care about your symptoms being connected to your other heart attack. It’s been two 25 months since you were in here faking. I’m not sending lying convicts to hospital for free 26 drugs. Get your drugs from the convicts on the yard. Just stop doing drugs and drink more 27 water.” Id. at 6–7. 28 /// 1 On January 3, 2024, Plaintiff “experienced a third episode of emergency heart attack 2 symptoms that made him immobile.” Id. at 7. Dr. Luu allegedly told Plaintiff: “You’re 3 wasting your time and mine. You’re obviously not hearing me when I keep telling you 4 about you having the same symptoms that you had before your last heart attack. Coming 5 back here sooner still won’t get you sent to hospital for free drugs. Forget about it. Next 6 time put in a sick-call slip if you feel sick.” Id. at 7–8. 7 On January 9, 2024, Plaintiff experienced heart attack symptoms for a fourth time 8 and told Dr. Luu that his symptoms were getting worse and coming more often. Id. at 8–9. 9 Dr. Luu allegedly told him: “For the last time, stop coming in here. I don’t care if you have 10 another heart attack. Your fake symptoms are never going to get me to send you to 11 hospital.” Id. at 9. On April 9, 2024, Plaintiff filed a prison health care appeal to appeal the 12 decision not to provide outside specialty heart care, which was denied by Defendant Chief 13 Medical Executive Roberts. Id. at 9–10. Plaintiff suffered a heart attack on May 3, 2024. 14 Id. at 10. 15 Plaintiff claims Dr. Luu was deliberately indifferent to a serious medical need 16 because he was “aware that plaintiff’s heart attack symptoms were connected to his 17 previous heart attack which caused temporary death and that serious injury or death was 18 therefore likely based on the same symptoms being present,” but refused his requests for a 19 “necessary higher level of specialty-cardiology course of medical treatment to prevent 20 another heart attack and eliminate recurrence of heart attack symptoms.” Id. Plaintiff 21 identifies that treatment as (1) specialty medical treatment and consultation from a 22 cardiologist, (2) continuous heart monitoring, (3) CT scans, (4) multiple blood tests, 23 (5) EKG and other heart tests, and (6) new medication and modification of current 24 medication. Id. at 5–6. He claims the refusal by Dr. Luu to send him to a hospital and the 25 denial of his health care appeal by Roberts amounted to deliberate indifference to a serious 26 medical need in violation of the Eighth Amendment because it resulted in the worsening 27 of his heart condition, a heart attack, the implantation of a pacemaker, and immeasurable 28 pain and suffering. Id. at 5, 10. 1 C. Discussion 2 The Eighth Amendment’s prohibition on the infliction of cruel and unusual 3 punishment “establish the government’s obligation to provide medical care for those whom 4 it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101-03 (1976). 5 “Deliberate indifference ‘may appear when prison officials deny, delay or intentionally 6 interfere with medical treatment.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 7 2014), quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 8 “[A] prison official violates the Eighth Amendment when two requirements are met. 9 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 10 Brennan, 511 U.S. 825, 834 (1994). Second, Plaintiff must allege the prison official he 11 seeks to hold liable had a “‘sufficiently culpable state of mind’ . . . [T]hat state of mind is 12 one of ‘deliberate indifference’ to inmate health or safety.” Id. A prison official can be held 13 liable only if he “knows of and disregards an excessive risk to inmate health and safety;” 14 he “must both be aware of facts from which the inference could be drawn that a substantial 15 risk of serious harm exists, and he must also draw the inference.” Id. at 837. 16 The Court previously found that Plaintiff has plausibly alleged a serious medical 17 need, in that he suffered a heart attack which required surgery and a pacemaker. See ECF 18 No. 9 at 4, citing Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia 19 of a ‘serious’ medical need include (1) the existence of an injury that a reasonable doctor 20 would find important and worthy of comment or treatment, (2) the presence of a medical 21 condition that significantly affects an individual’s daily activities, and (3) the existence of 22 chronic or substantial pain.”) 23 Deliberate indifference to that serious medical need can be shown where the chosen 24 course of medical treatment was “medically unacceptable under the circumstances” and 25 chosen “in conscious disregard of an excessive risk to the prisoner’s health.” Toguchi v. 26 Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). “Deliberate indifference is a high legal 27 standard,” id. at 1060, and requires “a purposeful act or failure to respond to a prisoner’s 28 pain or possible medical need” which caused the alleged injury. Jett v. Penner, 439 F.3d 1 1091, 1096 (9th Cir. 2006). 2 As noted above, Plaintiff alleges Dr. Luu examined him on four occasions and 3 observed increasingly serious and frequent immobilizing symptoms of heart issues which, 4 in conjunction with his medical history, should have caused Dr. Luu to alter the course of 5 the medical treatment he was receiving or refer him to a cardiologist for further evaluation. 6 Instead, Dr. Luu continued the course of treatment which was resulting in those serious 7 symptoms and sent Plaintiff back to the prison grounds each time. Plaintiff’s allegations 8 that Dr. Luu’s decision was chosen in conscious disregard of an excessive risk to his health 9 or that it was medically unacceptable under the circumstances are sufficient to survive the 10 “low threshold” of the screening required by 28 U.S.C. §§ 1915(e)(2) & 1915A(b) with 11 respect to an Eighth Amendment claim against Dr. Luu. Wilhelm, 680 F.3d at 1123; Iqbal, 12 556 U.S. at 678; Farmer, 511 U.S. at 837 (deliberate indifference shown where defendant 13 was “aware of facts from which the inference could be drawn that a substantial risk of 14 serious harm exists” by delaying or denying medical care and actually “drew that 15 inference.”); see also Wood v. Housewright, 900 F.2d 1332, 1334–35 (9th Cir. 1990) (a 16 defendant must purposefully ignore or fail to respond to pain or medical needs which 17 “caused substantial harm.”) 18 Plaintiff also alleges Defendant Roberts, the Chief Medical Executive at RJD, was 19 aware through the appeal of Dr. Luu’s decision to refuse medical care that the course of 20 treatment Dr. Luu provided was either medically unacceptable under the circumstances or 21 chosen in conscious disregard of an excessive risk to his health and was responsible for 22 reversing that decision but failed to do so. ECF No. 10 at 9–10. The SAC plausibly alleges 23 deliberate indifference to a serious medical need against Roberts sufficient to survive 24 screening. See Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (“In a section 1983 25 claim, a supervisor is liable for the acts of his subordinates if the supervisor participated in 26 or directed the violations, or knew of the violations of subordinates and failed to act to 27 prevent them.”) (internal quote marks omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th 28 Cir. 1989) (liability may be established by alleging personal acts by individual defendants 1 which have a direct causal connection to the constitutional violation at issue). 2 Accordingly, Plaintiff is entitled to have the USMS effect service of the summons 3 and SAC against defendants Dr. Luu and Roberts. See 28 U.S.C. § 1915(d) (“The officers 4 of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed. 5 R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal 6 or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28 7 U.S.C. § 1915.”) 8 III. CONCLUSION 9 Accordingly, the Court: 10 1) DIRECTS the Clerk to issue a summons as to Plaintiff’s Second Amended 11 Complaint (ECF No. 10) for defendants Roberts and Dr. Luu and forward it to Plaintiff 12 along with a blank U.S. Marshal Form 285. The Clerk will provide Plaintiff with certified 13 copies of the Second Amended Complaint and summons for use in serving Defendants. 14 Upon receipt of this “In Forma Pauperis Package,” Plaintiff must complete the USM Form 15 285 as completely and accurately as possible, include an address where Defendants may 16 be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1(c), and return the forms 17 to the United States Marshal according to the instructions the Clerk provides in the letter 18 accompanying the In Forma Pauperis Package. 19 2) ORDERS the USMS to serve a copy of the Second Amended Complaint and 20 summons upon defendants Roberts and Dr. Luu as directed by Plaintiff on the USM Form 21 285. Costs of service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. 22 R. Civ. P. 4(c)(3). 23 3) ORDERS Defendants, once served, to reply to Plaintiff’s Second Amended 24 Complaint and any subsequent pleading Plaintiff files in this matter in which Defendants 25 are named as a party within the time provided by the applicable provisions of Federal Rules 26 of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while Defendants may 27 occasionally be permitted to “waive the right to reply to any action brought by a prisoner 28 confined in any jail, prison, or other correctional facility under section 1983,” once the 1 || Court has conducted its sua sponte screening Defendants are required to respond). 2 4) ORDERS Plaintiff, after service has been effected by the USMS, to serve 3 || upon Defendants, or if appearance has been entered by counsel, upon Defendants’ counsel, 4 ||a copy of every further pleading, motion, or other document submitted for the Court’s 5 consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original 6 || document sought to be filed with the Clerk, a certificate stating the manner in which a true 7 || and correct copy of that document has been served on Defendants or their counsel, and the 8 || date of that service. See S.D. Cal. CivLR 5.2. Any document received by the Court which 9 || has not been properly filed with the Clerk or which fails to include a Certificate of Service 10 |} upon a Defendant, or their counsel, may be disregarded. 11 IT IS SO ORDERED. 12 || Dated: August 11, 2026 ‘ 3 Jekut ¢ Hows 14 Hon. Robert S. Huie United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8