-WMC Deere v. Cuomo et al, No. 3:2011cv00542 - Document 3 (S.D. Cal. 2011)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis, imposing no initial partial filing fee, garnishing $350 balance from prisoner's trust account and dismissing complaint without prejudice for failure to state a claim pursuant to 28 USC 1915(e)(2) and 1915A(b). Plaintiff is granted 45 days leave to file a second amended complaint. (blank amended 1983 complaint form mailed to plaintiff). (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge John A. Houston on 10/19/11. (All non-registered users served via U.S. Mail Service)(jpp)
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-WMC Deere v. Cuomo et al Doc. 3 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 ARTHUR RAY DEERE, SR, CDCR #F-94040, Civil No. Plaintiff, 13 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350.00 BALANCE FROM PRISONER’S TRUST ACCOUNT [ECF No. 2]; AND 14 15 vs. 16 17 18 19 ANTHONY CUOMO, Medical Doctor; HANS F. KOENIG, CEO of Alvarado Medical Center; E. ESTOCK, Medical Doctor; JERRY BROWN, Governor; 20 11cv0542 JAH (WMc) (2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) Defendants. 21 22 23 Arthur Ray Deere, Jr. (“Plaintiff”), a state prisoner currently incarcerated at Calipatria 24 State Prison located in Calipatria, California, and proceeding pro se, has submitted a civil action 25 pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a Motion to Proceed In Forma 26 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 3]. 27 /// 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv0542-grt IFP & dsm.wpd, 102011 1 11cv0542 JAH (WMc) Dockets.Justia.com 1 I. 2 MOTION TO PROCEED IFP [ECF No. 2] 3 All parties instituting any civil action, suit or proceeding in a district court of the United 4 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 5 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 6 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to 8 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their 9 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 10 844, 847 (9th Cir. 2002). 11 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 12 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 13 statement (or institutional equivalent) for the prisoner for the six-month period immediately 14 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 15 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 16 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 17 (b) the average monthly balance in the account for the past six months, whichever is greater, 18 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 19 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 20 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 21 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 22 § 1915(b)(2). 23 The Court finds that Plaintiff has no available funds from which to pay filing fees at this 24 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 25 from bringing a civil action or appealing a civil action or criminal judgment for the reason that 26 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 27 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 28 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv0542-grt IFP & dsm.wpd, 102011 2 11cv0542 JAH (WMc) 1 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion 2 to Proceed IFP [ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 3 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded 4 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 5 § 1915(b)(1). 6 II. 7 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) 8 Notwithstanding IFP status or the payment of any partial filing fees, the Court must 9 subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening 10 and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a 11 claim upon which relief may be granted, or seeking monetary relief from a defendant immune 12 from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 13 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 14 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 15 only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that 16 fails to state a claim). 17 Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte 18 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as 19 amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to 20 the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing 21 the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at 22 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 23 1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of 24 process is made on the opposing parties”). 25 “[W]hen determining whether a complaint states a claim, a court must accept as true all 26 allegations of material fact and must construe those facts in the light most favorable to the 27 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 28 (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv0542-grt IFP & dsm.wpd, 102011 3 11cv0542 JAH (WMc) 1 Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s 2 pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), 3 which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 4 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the 5 court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board 6 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 7 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 8 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 9 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 10 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 11 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 12 B. Eighth Amendment Claims 13 Plaintiff claims that Defendants Cuomo and Estock have violated his Eighth Amendment 14 rights as a result of “malpractice, incompetence and/or negligence.” (Compl. at 3.) In order to 15 assert a claim for inadequate medical care, Plaintiff must allege facts which are sufficient to 16 show that each person sued was “deliberately indifferent to his serious medical needs.” Helling 17 v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Prison 18 officials must purposefully ignore or fail to respond to Plaintiff’s pain or medical needs; neither 19 an inadvertent failure to provide adequate medical care, nor mere negligence or medical 20 malpractice constitutes a constitutional violation. Estelle, 429 U.S. at 105-06. 21 Thus, to state a claim, Plaintiff must allege facts sufficient to show both: (1) an 22 objectively “serious” medical need, i.e., one that a reasonable doctor would think worthy of 23 comment, one which significantly affects his daily activities, or one which is chronic and 24 accompanied by substantial pain, see Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); 25 and (2) a subjective, and “sufficiently culpable” state of mind on the part of each individual 26 Defendant. See Wilson v. Seiter, 501 U.S. 294, 302 (1991). 27 Plaintiff claims that Dr. Cuomo negligently increased his medication that resulted in 28 Plaintiff developing “vision problems, chest pains and muscle spasms” in his leg. (Compl. at K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv0542-grt IFP & dsm.wpd, 102011 4 11cv0542 JAH (WMc) 1 3.) As stated above, inadequate treatment due to malpractice, or even gross negligence, does 2 not amount to a constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 3 F.2d 1332, 1334 (9th Cir. 1990). In addition, Plaintiff claims that Dr. Estock was “negligent 4 in taking 10 months to raise an objection” to the increase in Plaintiff’s medication. (Comp. at 5 3.) Plaintiff also claims that Dr. Estock should have informed Dr. Cuomo of a less invasive 6 procedure. (Id.) However, a mere difference of opinion between an inmate and prison medical 7 personnel regarding appropriate medical diagnosis and treatment are not enough to establish a 8 deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 9 10 Accordingly, Plaintiff’s Eighth Amendment claims are dismissed for failing to state a § 1983 claim upon which relief may be granted. 11 C. Respondeat Superior claims 12 Plaintiff names the CEO of Alvarado Medical Center and Governor Jerry Brown as 13 Defendants in this matter but fails to set forth any specific factual allegations with regard to 14 these Defendants in the body of Plaintiff’s Complaint. Thus, it appears that Plaintiff seeks to 15 hold these Defendants liable in their supervisory capacity. However, there is no respondeat 16 superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 17 1993). Instead, “[t]he inquiry into causation must be individualized and focus on the duties and 18 responsibilities of each individual defendant whose acts or omissions are alleged to have caused 19 a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo 20 v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff 21 must allege personal acts by each individual Defendant which have a direct causal connection 22 to the constitutional violation at issue. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 23 Supervisory prison officials may only be held liable for the allegedly unconstitutional 24 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 25 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 26 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 27 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 28 however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv0542-grt IFP & dsm.wpd, 102011 5 11cv0542 JAH (WMc) 1 support an individualized constitutional claim against Defendants Koenig or Brown. 2 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim 3 upon which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. 4 §§ 1915(e)(2)(b) & 1915A(b). The Court will provide Plaintiff with an opportunity to amend 5 his pleading to cure the defects set forth above. Plaintiff is warned that if his amended complaint 6 fails to address the deficiencies of pleading noted above, it may be dismissed with prejudice and 7 without leave to amend. 8 III. 9 CONCLUSION AND ORDER 10 Good cause appearing, IT IS HEREBY ORDERED that: 11 1. 12 13 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 14 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 15 owed in this case by collecting monthly payments from the account in an amount equal to twenty 16 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 17 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 18 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 19 ASSIGNED TO THIS ACTION. 20 3. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, 21 Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, 22 Sacramento, California 95814. 23 IT IS FURTHER ORDERED that: 24 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 25 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 26 from the date this Order is “Filed” in which to file a Second Amended Complaint which cures 27 all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete 28 in itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv0542-grt IFP & dsm.wpd, 102011 6 11cv0542 JAH (WMc) 1 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been 2 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended 3 Complaint fails to state a claim upon which relief may be granted, it may be dismissed without 4 further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). 5 See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 6 5. The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff. 7 IT IS SO ORDERED. 8 DATED: October 19, 2011 9 10 JOHN A. HOUSTON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\JAH\11cv0542-grt IFP & dsm.wpd, 102011 7 11cv0542 JAH (WMc)
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