Lee v. San Diego County Jail, No. 3:2015cv01236 - Document 10 (S.D. Cal. 2015)
Court Description: ORDER granting plaintiff's 7 Motion for Leave to Proceed in Forma Pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly p ayments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)( 2). Plaintiff's Complaint is dismissed without prejudice for failing to state a claim upon which relief may be granted. Plaintiff is granted forty-five (45) days leave from the date this Order is filed in which to file a First Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 6/30/15. (All non-registered users served via U.S. Mail Service)(copy of 1983 civil right complaint to petitioner)(kas)
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Lee v. San Diego County Jail Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH A. LEE, 12 CDCR #AU-9231, Civil No. 13 Plaintiff, 14 15 vs. AND SAN DIEGO COUNTY JAIL, 18 Defendants. 19 20 21 22 23 24 25 26 27 28 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No. 7) 16 17 15cv1236 LAB (NLS) (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) Joseph A. Lee (“Plaintiff”), a state inmate currently housed at the California Rehabilitation Center located in Norco, California, and proceeding pro se, initially filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1) in the Eastern District of California. On June 2, 2015, United States Magistrate Judge Kendall Newman determined that the actions giving rise to Plaintiff’s claims arose in San Diego County and transferred the matter to the Southern District of California. (Doc. No. 4) /// /// I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -1- 15cv1236 LAB (NLS) Dockets.Justia.com 1 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 2 he filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis 3 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No. 7). 4 I. 5 PLAINTIFF’S MOTION TO PROCEED IFP 6 All parties instituting any civil action, suit or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee of 8 $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to 9 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 10 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a 11 prisoner granted leave to proceed IFP remains obligated to pay the entire fee in 12 installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. 13 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 14 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 15 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 16 trust fund account statement (or institutional equivalent) for the prisoner for the six17 month period immediately preceding the filing of the complaint.” 28 U.S.C. 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly 21 balance in the account for the past six months, whichever is greater, unless the prisoner 22 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 23 having custody of the prisoner then collects subsequent payments, assessed at 20% of 24 the preceding month’s income, in any month in which the prisoner’s account exceeds 25 / / / 26 1 In addition to $350 statutory fee, all parties civil actions on or after 27 May 1, 2013, must pay theadditional administrative fee offiling See 28 U.S.C. § 1914(a) an $50. Schedule Misc. Fee Schedule) (eff. May 1, 28 (Judicial Conference additional of Fees, District Court is waived if the plaintiff is granted 2013). However, the $50 administrative fee leave to proceed IFP. Id. I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -2- 15cv1236 LAB (NLS) 1 $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 2 U.S.C. § 1915(b)(2). 3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 4 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. 5 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, 6 as well as the attached prison certificate verifying his available balances. Plaintiff’s 7 statements show he has insufficient funds in his prisoner trust account during the 6-month 8 period preceding the filing of this action, and no available funds from which to pay any 9 initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 10 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 11 or criminal judgment for the reason that the prisoner has no assets and no means by which 12 to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 13 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 14 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 15 ordered.”). 16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 17 7) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the 18 entire $350 balance of the filing fees mandated will be collected by the California 19 Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of 20 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 21 § 1915(b)(1). 22 II. 23 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 24 A. 25 Notwithstanding IFP status or the payment of any filing fees, the PLRA also Standard of Review 26 obligates the Court to review complaints filed by all persons proceeding IFP and by 27 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 28 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -3- 15cv1236 LAB (NLS) 1 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 2 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 3 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions 4 thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from 5 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 6 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 7 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 8 “[W]hen determining whether a complaint states a claim, a court must accept as 9 true all allegations of material fact and must construe those facts in the light most 10 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also 11 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) 12 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while 13 a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted 14 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal 15 quotation marks and citation omitted). Thus, while the court “ha[s] an obligation where 16 the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally 17 and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 18 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), 19 it may not, in so doing, “supply essential elements of claims that were not initially pled.” 20 Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 21 “Vague and conclusory allegations of official participation in civil rights violations” are 22 simply not “sufficient to withstand a motion to dismiss.” Id. 23 B. 24 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 25 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 26 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 27 substantive rights, but merely provides a method for vindicating federal rights elsewhere 28 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -4- 15cv1236 LAB (NLS) 1 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 2 deprivation of a right secured by the Constitution and laws of the United States, and (2) 3 that the deprivation was committed by a person acting under color of state law.” Tsao 4 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 5 C. 6 As an initial matter, the Court finds that to the extent Plaintiff names “San Diego Personal Liability 7 County Jail” as the only Defendant, his claims must be dismissed sua sponte pursuant to 8 both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim upon which § 9 1983 relief can be granted. 10 Local law enforcement departments, like the San Diego Sheriff’s Department or 11 the County Jail, municipal agencies, or subdivisions of those department or agencies, are 12 not proper defendants under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 13 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an 14 appropriate means of pleading a § 1983 action against a municipality.”) (citation 15 omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 16 1983 imposes liability on any ‘person’ who violates someone’s constitutional rights 17 ‘under color of law.’ Cook County Jail is not a ‘person.’”). 18 While the County of San Diego may be considered a “person” properly subject to 19 suit under § 1983, see Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978); 20 Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), the County may be 21 held liable only where the Plaintiff alleges facts to show that a constitutional deprivation 22 was caused by the implementation or execution of “a policy statement, ordinance, 23 regulation, or decision officially adopted and promulgated” by the municipality, or a 24 “final decision maker” for the municipality. Monell, 436 U.S. at 690; Board of the County 25 Comm’rs v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 714 26 (9th Cir. 1995). In other words, “respondeat superior and vicarious liability are not 27 cognizable theories of recovery against a municipality.” Miranda v. Clark County, 28 Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002). I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -5- 15cv1236 LAB (NLS) 1 “A municipality cannot be held liable solely because it employs a tortfeasor.” 2 Monell, 436 U.S. at 691; Navarro, 72 F.3d at 714. Instead, to allege a claim against a 3 municipality, Plaintiff must include in his pleading enough “factual content” to support 4 a reasonable inference to show that: (1) he was deprived of a constitutional right; (2) the 5 city or county had a policy; (3) the policy amounted to deliberate indifference to his 6 constitutional right; and (4) the policy was the “moving force behind the constitutional 7 violation.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see also 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 9 1996). 10 As currently pleaded, however, Plaintiff’s Complaint fails to state a claim under 11 28 U.S.C. §§ 1915(e)(2) and § 1915A(b) because he has failed to allege any facts which 12 “might plausibly suggest” that his medical care was effected pursuant to any municipal 13 custom, policy or practice implemented or promulgated with deliberate indifference to 14 his constitutional rights, or that it was the “moving force”or cause of his injury. See 15 Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s 16 pleading standards to Monell claims); Brown, 520 U.S. at 404 (“[I]t is not enough for a 17 § 1983 plaintiff merely to identify conduct properly attributable to the municipality . . . 18 [t]he plaintiff must also demonstrate that, through its deliberate conduct, the municipality 19 was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the 20 municipal action was taken with the requisite degree of culpability and must demonstrate 21 a causal link between the municipal action and the deprivation of federal rights.” (italics 22 in original). 23 D. 24 Plaintiff alleges that he was denied adequate medical care when he was housed at Inadequate Medical Care Claims 25 the San Diego Cental Jail. (See Compl. at 2.) Specifically, Plaintiff claims that “he was 26 overdosed on my seizure medication that resulted in my being hospitalized for four days.” 27 (Id.) However, only “deliberate indifference to a prisoner’s serious illness or injury [will] 28 state[] a cause of action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 105 (1976); see I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -6- 15cv1236 LAB (NLS) 1 also Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 2010) 2 (applying Estelle’s Eighth Amendment deliberate indifference standard to inadequate 3 medical care claims alleged to violate a pretrial detainees’ due process rights). 4 First, Plaintiff must allege a “serious medical need” by demonstrating that “failure 5 to treat [his] condition could result in further significant injury or the ‘unnecessary and 6 wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), 7 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 8 (en banc) (citing Estelle, 429 U.S. at 104). The “existence of an injury that a reasonable 9 doctor or patient would find important and worthy of comment or treatment; the presence 10 of a medical condition that significantly affects an individual’s daily activities; or the 11 existence of chronic and substantial pain are examples of indications that a prisoner has 12 a ‘serious’ need for medical treatment.” Id. at 1059-60. 13 The Court will assume, for purposes of screening pursuant to 28 U.S.C. 14 § 1915(e)(2) and § 1915A, that he had a serious medical need in October 2013 when he 15 was housed in the San Diego Central Jail. See McGuckin, 974 F.2d at 1059. 16 However, even assuming Plaintiff’s medical condition and/or pain was sufficiently 17 objectively serious to invoke Eighth or Fourteenth Amendment protection, he must also 18 include in his pleading enough factual content to show that each Defendant he seeks to 19 hold liable acted with “deliberate indifference” to his needs. McGuckin, 974 F.2d at 1060; 20 see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “This second 21 prong–defendant’s response to the need was deliberately indifferent–is satisfied by 22 showing (a) a purposeful act or failure to respond to [the] prisoner’s pain or possible 23 medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096. 24 “Deliberate indifference is a high legal standard,” and claims of medical malpractice or 25 negligence are insufficient to establish a constitutional deprivation. Simmons v. Navajo 26 County, 609 F.3d 1011, 1019 (9th Cir. 2010) (citing Toguchi v. Chung, 391 F.3d 1051, 27 1060 (9th Cir. 2004)). 28 Here, Plaintiff claims that jail staff was “medically negligent” when they gave him I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -7- 15cv1236 LAB (NLS) 1 medication to which he was allergic. (Compl. at 2.) However, inadequate treatment due 2 to malpractice, or even gross negligence, does not amount to a constitutional violation. 3 Estelle, 429 U.S. at 106. 4 Moreover, “deliberate indifference” is evidenced only when a prisoner can show 5 that the official he seeks to hold liable “kn[ew] of and disregard[ed] an excessive risk to 6 inmate health and safety; the official must be both aware of facts from which the 7 inference could be drawn that a substantial risk of serious harm exist[ed], and he must 8 also [have] draw[n] the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 9 Specifically, Plaintiff must allege “factual content,” Iqbal, 556 U.S. at 678, which 10 demonstrates “(a) a purposeful act or failure to respond to [his] pain or possible medical 11 need, and (b) harm caused by the indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 12 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of 13 subjective recklessness, which entails more than ordinary lack of due care. Snow v. 14 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); 15 Wilhelm, 680 F.3d at 1122. 16 Plaintiff does not identify, with any specificity, any individual whom he claims is 17 responsible for allegedly failing to provide him with adequate medical care. He has failed 18 to provide sufficient “factual content” to plausibly suggest that any party named as a 19 Defendant in this case acted with deliberate indifference. Iqbal, 556 U.S. at 678 (“The 20 plausibility standard is not akin to a ‘probability requirement,’ but it ask for more than 21 the sheer possibility that a defendant has acted unlawfully.”). “A difference of opinion 22 between a physician and the prisoner–or between medical professionals– concerning what 23 medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d 24 at 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); 25 Wilhelm, 680 F.3d at 1122-23. Rather, Plaintiff “must show that the course of treatment 26 the doctors chose was medically unacceptable under the circumstances and that the 27 defendants chose this course in conscious disregard of an excessive risk to [his] health.” 28 Snow, 681 F.3d at 988 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)) I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -8- 15cv1236 LAB (NLS) 1 (internal quotation marks omitted). 2 Accordingly, for this additional reason, the Court finds that Plaintiff has failed to 3 adequate allege an inadequate medical care claim upon which § 1983 relief can be 4 granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); Lopez, 203 F.3d at 1126-27; Rhodes, 5 621 F.3d at 1004. Because he is proceeding pro se, however, the Court having now 6 provided him with “notice of the deficiencies in his complaint,” will also grant Plaintiff 7 an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) 8 (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 9 III. 10 CONCLUSION AND ORDER 11 Good cause appearing, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 7) is 13 GRANTED. 14 2. The Secretary of the California Department of Corrections and 15 Rehabilitation, or his designee, shall collect from Plaintiff’s prison trust account the $350 16 balance of the filing fee owed in this case by collecting monthly payments from the 17 account in an amount equal to twenty percent (20%) of the preceding month’s income 18 and forward payments to the Clerk of the Court each time the amount in the account 19 exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE 20 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 21 ACTION. 22 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 23 Beard, Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, 24 Suite 502, Sacramento, California 95814. 25 IT IS FURTHER ORDERED that: 26 4. Plaintiff’s Complaint is DISMISSED without prejudice for failing to state 27 a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2) & § 1915A(b). 28 5. Plaintiff is GRANTED forty-five (45) days leave from the date this Order I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -9- 15cv1236 LAB (NLS) 1 is filed in which to file a First Amended Complaint which cures all the deficiencies of 2 pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without 3 reference to his original Complaint. See S.D. CAL. CIVLR 15.1. Defendants not named 4 and all claims not re-alleged in the Amended Complaint will be considered waived. See 5 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). If Plaintiff fails to file an Amended 6 Complaint within 45 days, this action shall remain dismissed without further Order by 7 the Court. 8 6. The Clerk of Court is directed to mail Plaintiff a copy of a Court approved 9 § 1983 civil rights complaint. 10 11 DATED: June 30, 2015 12 13 HONORABLE LARRY ALAN BURNS United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\15cv1236-grt IFP and dsm.wpd -10- 15cv1236 LAB (NLS)
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