Hector Orozco v. American Legion Ambulance Company, et al.

Summary

The court grants plaintiff’s unopposed motion for leave to amend and deems the proposed first amended complaint operative. The magistrate judge finds potentially cognizable Eighth Amendment excessive-force and deliberate-indifference claims, a California gross-negligence claim against American Legion Ambulance, and California Bane Act claims against several defendants, while allowing plaintiff to amend further. The court recommends denying plaintiff’s motion to remand because the alleged removal defects were cured or could be cured.

Holdings

1. Remand was not warranted because the alleged defects were procedural rather than jurisdictional, the notice-of-removal service issue had been cured without prejudice, and any defect concerning joinder of properly served defendants could be cured before judgment.
2. Plaintiff's unopposed motion for leave to amend was granted, and the proposed first amended complaint was deemed the operative complaint.
3. Liberally construed, the allegations stated a potentially cognizable claim under 42 U.S.C. § 1983 and the Eighth Amendment against Correctional Officers Grijalva, Choo, and S. Martinez for excessive force, but did not state such a claim against M. James for restraining plaintiff while unconscious.
4. The allegations stated a potentially cognizable § 1983 claim against R.N. Sirithes for deliberate indifference to plaintiff's health or safety, but did not state such a claim against Psych Tech Galbraith or P&S Davis.
5. The first amended complaint stated a potentially cognizable California gross-negligence claim against American Legion Ambulance based on the alleged conduct of its EMT employees.
6. The first amended complaint did not state a claim or basis for heightened remedies under California's dependent-adult-abuse statutory scheme because plaintiff was not a dependent adult within the relevant statutory definition.
7. The first amended complaint did not state a claim for intentional infliction of emotional distress against the identified defendants.
8. The complaint stated potential California Bane Act claims against Grijalva, Choo, S. Martinez, R.N. Sirithes, and American Legion Ambulance, but not against the remaining identified defendants.

Questions Presented

1. Whether alleged defects in service of the notice of removal and the failure of all defendants to join the removal required remand.
2. Whether plaintiff should be granted leave to file the proposed first amended complaint.
3. Whether the first amended complaint stated potentially cognizable claims under 42 U.S.C. § 1983 for excessive force and deliberate indifference to health or safety.
4. Whether the first amended complaint stated California-law claims for gross negligence, abuse or neglect of a dependent adult, intentional infliction of emotional distress, and violations of the Tom Bane Civil Rights Act.
5. Whether additional summonses should issue before plaintiff elected to proceed on the screened complaint or amend again.

Disposition

other