Ochoa v. Lintig et al, No. 3:2019cv00346 - Document 13 (S.D. Cal. 2019)

Court Description: ORDER Granting 10 Motion to Proceed in Forma Pauperis; Denying 11 Motion to Appoint Counsel; Granting 12 Motion for Leave to File Excess Pages; Dismissing First Amended Complaint for Failing to State a Claim Pursuant to 28U.S.C. § 1915( e)(2) and 28 U.S.C. § 1915A(b). The Court directs the Acting Secretary of the CDCR, or his designee, to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to 20% of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). The Court directs the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Acting Secretary, CDCR. The Court dismisses Plaintiff's FAC for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and g rants him 45 days leave from the date of this Order in which to file a Second Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff's Second Amended Complaint must be complete by itself without reference to his original pleading. Defendants not named and any claim not re-alleged in his First Amended Complaint will be considered waived. If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action based both on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure to prosecute in compliance with a court order requiring amendment. Signed by Judge Michael M. Anello on 6/25/2019. (Order electronically transmitted to Secretary of CDCR)(Blank Amended 1983 Complaint form mailed to Plaintiff)(All non-registered users served via U.S. Mail Service)(rmc)

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Ochoa v. Lintig et al Doc. 13 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 Case No.: 3:19-cv-00346-MMA-JLB BARRY ERNEST OCHOA, CDCR #AN-2773, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; Plaintiff, vs. [Doc. No. 10] FEDERICKA VON LINTIG; L. CARMICHAEL; R. MADDEN; RALPH M. DIAZ; JOHN DOE #1; JOHN DOE #2 DENYING MOTION TO APPOINT COUNSEL; [Doc. No. 11] Defendants. GRANTING MOTION FOR LEAVE TO FILE EXCESS PAGES; 20 21 [Doc. No. 12] 22 DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) 23 24 25 26 27 Plaintiff Barry Ernest Ochoa, a prisoner incarcerated at Correctional Training 28 Facility located in Soledad, California and proceeding pro se, has filed a civil rights 1 3:19-cv-00346-MMA-JLB Dockets.Justia.com 1 action pursuant to 42 U.S.C. § 1983. Plaintiff’s initial complaint was stricken by the 2 Court for failing to comply with the Court’s General Order 653A. See Doc. No. 4. 3 However, the Court later permitted Plaintiff to file a First Amended Complaint (“FAC”) 4 which is now the operative pleading. See Doc. No. 9. In addition, Plaintiff has filed a 5 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), a Motion 6 for Leave to File Excess Pages, and a Motion to Appoint Counsel. See Doc. Nos. 10, 11, 7 12. 8 I. 9 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 10 United States, except an application for writ of habeas corpus, must pay a filing fee. See 11 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to prepay the 12 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 13 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 14 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the 15 entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 16 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 17 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 18 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy of 19 the trust fund account statement (or institutional equivalent) for . . . the six-month period 20 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 21 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 22 the Court assesses an initial payment of 20% of (a) the average monthly deposits in the 23 account for the past six months, or (b) the average monthly balance in the account for the 24 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 25 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 26 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 27 month in which the prisoner’s account exceeds $10, and forwards them to the Court until 28 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 2 3:19-cv-00346-MMA-JLB 1 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate 2 trust account statement. See Doc. No. 10 at 7-8. Plaintiff’s statement shows that he had 3 no available funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) 4 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 5 or appealing a civil action or criminal judgment for the reason that the prisoner has no 6 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 7 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 8 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 9 available to him when payment is ordered.”). 10 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 10) 11 and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire 12 $350 balance of the filing fees due for this case must be collected by the California 13 Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of 14 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 15 § 1915(b)(1). 16 II. Motion to File Excess Pages 17 Because Plaintiff was incarcerated at Centinela State Prison (“CEN”) at the time of 18 filing, S.D. Cal. General Order 653A applies to his initial pleadings. General Order 19 653Asets out procedures whereby the U.S. District Court for the Southern District of 20 California, in conjunction with the California Department of Corrections and 21 Rehabilitation (“CDCR”), adopted a pilot program at CEN requiring that prisoners 22 incarcerated there who wish to file § 1983 actions IFP submit their initial filings 23 electronically with the Clerk of the Court. Any initial documents subject to General Order 24 653A that are received by the Clerk but which do not comply with General Order 653, are 25 “accepted by the Clerk of Court for filing and docketed, but may be stricken by Court order 26 as authorized by Local Civil Rule 83.1.” See S.D. Cal. Gen. Order 653A ¶ 2. 27 General Order 653A also provides, in pertinent part, that “the Court will enforce 28 Local Civil Rule 8.2(a), which prohibits pro se complaints [filed] by prisoners from 3 3:19-cv-00346-MMA-JLB 1 exceeding twenty-two (22) pages, consisting of the [Court’s] seven (7) page form [§ 1983] 2 complaint, plus no more than fifteen additional pages.” Id. ¶ 4. CEN prisoners subject to 3 both General Order 653A and S.D. Cal. CivLR 8.2(a) may also file a motion to increase 4 this page limit, but each must “demonstrate his or her need to exceed the page limitation.” 5 Id. ¶¶ 6, 7. 6 Pro se litigants are generally bound to comply with the Court’s Local Rules and any 7 order of the Court. See S.D. Cal. CivLR 83.11.a (“Any person appearing propria persona 8 is bound by these rules of court and by the Fed. R. Civ. P. or Fed. R. Crim. P. as 9 appropriate.”); see also S.D. Cal. CivLR 83.1.a (“Failure of counsel or of any party to 10 comply with these rules, with the Federal Rules of Civil or Criminal Procedure, or with 11 any order of the court” may result in sanctions, including dismissal). 12 In this matter, while Plaintiff has filed voluminous exhibits, his FAC is only 13 twenty-two (22) pages including the Court’s form § 1983 complaint. Thus, while the 14 added exhibits could be construed to violate the Court’s Local Rules, the Court 15 GRANTS Plaintiff’s Motion for Leave to File Excess Pages (Doc. No. 12) and declines 16 to exercise its discretion to strike his non-compliant pleading pursuant to S.D. Cal. CivLR 17 83.1. See S.D. Cal. Gen. Order 653A. 18 III. 19 Motion to Appoint Counsel Plaintiff also seeks the appointment of counsel because he is unable to afford a 20 lawyer and claims his imprisonment will limit his ability to litigate. Plaintiff further 21 contends that an eventual trial will likely involve conflicting testimony and evidence that 22 trained counsel will be better able to evaluate and present. See Doc. No. 11 at 1. 23 However, there is no constitutional right to counsel in a civil case. Lassiter v. 24 Dept. of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th 25 Cir. 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion 26 to “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. 27 of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only 28 under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 4 3:19-cv-00346-MMA-JLB 1 (9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 2 whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 3 unable to articulate his claims in light of the complexity of the legal issues involved.’” 4 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d 5 at 970). 6 As currently pleaded, Plaintiff’s FAC demonstrates neither the likelihood of 7 success nor the legal complexity required to support the appointment of pro bono counsel 8 pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer¸560 F.3d at 9 970. First, while Plaintiff may not be formally trained in law, his allegations, as liberally 10 construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully 11 capable of legibly articulating the facts and circumstances relevant to his Eighth 12 Amendment claim which is not legally “complex.” Agyeman, 390 F.3d at 1103. Second, 13 for the reasons discussed more fully below, Plaintiff’s FAC requires sua sponte dismissal 14 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and it is simply too soon to tell whether 15 he will be likely to succeed on the merits of any potential constitutional claim against 16 either named Defendant. Id. As such, the Court finds no “exceptional circumstances” 17 currently exist and DENIES Plaintiff’s Motion to Appoint Counsel (Doc. No. 11) 18 without prejudice. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) 19 (affirming denial of counsel where prisoner could articulate his claims in light of the 20 complexity of the issues involved, and did not show likelihood of succeed on the merits). 21 IV. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 22 A. 23 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre- 24 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 25 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 26 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 27 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en Standard of Review 5 3:19-cv-00346-MMA-JLB 1 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 2 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 3 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 4 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 5 680, 681 (7th Cir. 2012)). 6 “The standard for determining whether a plaintiff has failed to state a claim upon 7 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 8 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 9 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 10 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 11 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to 13 “contain sufficient factual matter, accepted as true, to state a claim to relief that is 14 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 15 marks omitted). 16 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 17 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 18 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context- 19 specific task that requires the reviewing court to draw on its judicial experience and 20 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 21 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 22 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 23 B. 24 On July 3, 2013 Plaintiff “arrived” at CEN and “requested Hepatitis C treatment.” 25 Plaintiff’s Allegations1 FAC at 12. Medical staff ordered “bloodwork” on July 26, 2013 which “showed Plaintiff 26 27 28 1 Citations to electronically-filed documents refer to the pagination assigned by the CM/ECF system. 6 3:19-cv-00346-MMA-JLB 1 had Hepatitis C Genotype 1(a).” Id. Plaintiff was “referred to the Hepatitis C clinic 2 where additional bloodwork was ordered” on August 15, 2013. Id. Plaintiff claims this 3 additional bloodwork “showed an increase in the severity of Plaintiff’s medical 4 condition.” Id. 5 On November 12, 2013, Plaintiff made an “additional request for treatment” when 6 he was seen at the “Hep C clinic.” Id. Plaintiff alleges he “complained of extreme pain 7 and recurring symptoms.” Id. However, he claims Defendant Von Lintig “refused the 8 Plaintiff’s request for treatment” because according to the CDCR’s “Hepatitis C 9 management policy and procedure,” Plaintiff needed to be “at least stage 2” before he 10 became “eligible for the treatment.” Id. Plaintiff alleges Von Lintig “refused to complete 11 a treatment authorization request (“TAR”).” Id. “At this point the Plaintiff’s Hepatitis C 12 had not yet caused any permanent liver (or other) damage.” Id. Von Lintig did order a 13 “biopsy of Plaintiff’s liver.” Id. at 13. 14 On January 10, 2014, a “report” was issued indicating that the results of the biopsy 15 “showed that Plaintiff’s Hepatitis C had progressed to stage 2.” Id. Plaintiff was 16 “notified that he would have a 14 day follow up appointment” with Von Lintig but the 17 “appointment never happened.” Id. Plaintiff submitted a “Health Care Services request 18 form” on February 28, 2014 seeking to “obtain treatment for his now stage 2” Hepatitis 19 C. Id. 20 “Weeks later,” Plaintiff had an appointment with Von Lintig and claims he 21 “expressed his concerns about his advancing conditions and the possibility of irreparable 22 liver damage.” Id. However, he alleges Von Lintig told him that “once his blood was 23 cured his liver would heal on its own self.” Id. Plaintiff told Von Lintig that he was 24 “concerned about developing cirrhosis” and again “requested treatment.” Id. Plaintiff 25 alleges Von Lintig “denied” his request and stated that the CDCR’s “policy had changed 26 and that Plaintiff would not now be eligible for treatment until his Hepatitis C was stage 27 3.” Id. at 14. 28 7 3:19-cv-00346-MMA-JLB 1 Plaintiff was examined Dr Rogelio Ortega2 on February 1, 2016 and “noted that the 2 Plaintiff had a history of Hepatitis C” and as a result, he was “concerned about the 3 possibility of Cirrhosis.” Id. One day later, Plaintiff was examined by Dr. Kyle Seeley3 4 who purportedly “noted that the Plaintiff met the criteria for consideration of treatment” 5 and he “completed a [treatment authorization request] on behalf of the Plaintiff.” Id. Dr. 6 Seeley later informed Plaintiff on March 8, 2016 that Plaintiff’s request for treatment was 7 “deferred by the HCV Oversight Committee” due to the “possibility of Plaintiff being re- 8 sentenced, or having the eligibility for early parole.” Id. Dr. Seeley “personally e-mailed 9 the HCV Committee regarding Plaintiff’s ineligibility for early parole” and asked them to 10 “reconsider and continue the processing” of Plaintiff’s treatment authorization request. 11 Id. at 15. 12 Plaintiff’s treatment was approved by Defendant Carmichael on March 16, 2016. 13 See id. Plaintiff began his treatment on March 23, 2016 and completed the treatment on 14 June 16, 2016. See id. On June 21, 2016, Plaintiff “treatment is shown to have been 15 successful in allegedly curing the Plaintiff’s blood of Hepatitis C.” Id. However, on 16 August 11, 2016, Plaintiff underwent further testing that showed he had “cirrhosis of the 17 liver.” Id. Based on these allegations, Plaintiff seeks an unspecified amount of 18 compensatory and punitive damages, as well as declaratory relief. See id. at 22. 19 C. 20 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 42 U.S.C. § 1983 21 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 22 F.3d 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff 23 must allege two essential elements: (1) that a right secured by the Constitution or laws of 24 the United States was violated, and (2) that the alleged violation was committed by a 25 26 27 2 Dr. Ortega is not a named Defendant. 28 3 Dr. Seeley is not a named Defendant. 8 3:19-cv-00346-MMA-JLB 1 person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe 2 v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015). 3 D. 4 Plaintiff claims against Von Lintig arise from his claim that on November 12, 2013 5 he allegedly refused to provide Plaintiff with medical treatment. See FAC at 12. He also 6 claims that “weeks” after February 28, 2014, Von Lintig “denied Plaintiff’s request for 7 treatment.” Id. at 13-14. This is the last date Plaintiff indicates that he had any 8 interaction with Von Lintig. Statute of Limitations 9 “A claim may be dismissed [for failing to state a claim] on the ground that it is 10 barred by the applicable statute of limitations only when ‘the running of the statute is 11 apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at 12 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 13 465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears 14 beyond doubt that the plaintiff can prove no set of facts that would establish the 15 timeliness of the claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 16 (9th Cir. 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 17 1993) (where the running of the statute of limitations is apparent on the face of a 18 complaint, dismissal for failure to state a claim is proper, so long as Plaintiff is provided 19 an opportunity to amend in order to allege facts which, if proved, might support tolling); 20 see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 21 788 (9th Cir. 2000) (court may raise the defense of statute of limitations sua sponte), 22 overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383, 389 (9th Cir. 2011) 23 (en banc); Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte 24 dismissal under 28 U.S.C. § 1915(e)(2)(B) of prisoner’s time-barred complaint). 25 Because section 1983 contains no specific statute of limitation, federal courts apply 26 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 27 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); 28 Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of 9 3:19-cv-00346-MMA-JLB 1 limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the 2 limitations period was extended to two. Id. (citing CAL. CIV. PROC. CODE § 335.1). The 3 law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007) 4 (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 (noting 5 that in actions where the federal court borrows the state statute of limitation, the federal 6 court also borrows all applicable provisions for tolling the limitations period found in 7 state law). 8 9 Under California law, the statute of limitations for prisoners serving less than a life sentence is tolled for two years. See CAL. CIV. PROC. CODE § 352.1(a); Johnson v. 10 California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 11 (2005). Accordingly, the effective statute of limitations for most California prisoners is 12 three years for claims accruing before January 1, 2003 (one year limitations period plus 13 two year statutory tolling), and four years for claims accruing thereafter (two year 14 limitations period plus two years statutory tolling). In addition, the limitations period for 15 prisoners is tolled while the “prisoner completes the mandatory exhaustion process.” 16 Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). 17 Unlike the length of the limitations period, however, “the accrual date of a § 1983 18 cause of action is a question of federal law that is not resolved by reference to state law.” 19 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a 20 § 1983 cause of action accrues). “Under the traditional rule of accrual ... the tort cause of 21 action accrues, and the statute of limitation begins to run, when the wrongful act or 22 omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder 23 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury 24 which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 25 F.3d 987, 991 (9th Cir. 1999). 26 Here, Plaintiff’s claims against Von Lintig accrued in 2013 and 2014. See FAC at 27 12-14. Thus, assuming Plaintiff is not serving a life sentence, he is entitled to an 28 additional two (2) years of statutory tolling pursuant to CAL. CIV. PROC. CODE § 352.1(a). 10 3:19-cv-00346-MMA-JLB 1 Johnson, 207 F.3d at 654; see also Jones, 393 F.3d at 928 n.5 (noting that “California 2 courts have read out if the statute the qualification that the period of incarceration must 3 be ‘for a term less than for life’ in order for a prisoner to qualify for tolling.”). 4 Consequently, based on the face of Plaintiff’s own pleading, it is clear Plaintiff’s claims 5 against Von Lintig fall far outside California’s two-year statute of limitations, even 6 including all presumed periods of tolling provided by statute. See Wallace, 591 U.S. at 7 391; Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1 (tolling statute of 8 limitations “for a maximum of 2 years” during a prisoner’s incarceration). 9 Finally, Plaintiff’s claims could be considered timely if, in his FAC, he alleges 10 facts sufficient to show the limitations period may be equitably tolled. See Cervantes, 5 11 F.3d at 1276-77. Generally, federal courts also apply the forum state’s law regarding 12 equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 13 (9th Cir.1988). Under California law, however, Plaintiff must meet three conditions to 14 equitably toll the statute of limitations: (1) he must have diligently pursued his claim; (2) 15 his situation must be the product of forces beyond his control; and (3) Defendants must 16 not be prejudiced by the application of equitable tolling. See Hull v. Central Pathology 17 Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of 18 California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. 19 As currently pleaded, however, the Court finds Plaintiff has failed to plead any 20 facts which, if proved, would support any plausible claim for equitable tolling. See 21 Cervantes, 5 F.3d at 1277; Iqbal, 556 U.S. at 679; Hinton v. Pac. Enters., 5 F.3d 391, 395 22 (9th Cir. 1993) (plaintiff carries the burden to plead facts which would give rise to 23 equitable tolling); see also Kleinhammer v. City of Paso Robles, 385 Fed. Appx. 642, 643 24 (9th Cir. 2010). Accordingly, the Court finds the running of the statute of limitations is 25 apparent on the face of Plaintiff’s FAC, and therefore he has failed to state a claim as to 26 Von Lintig upon which section 1983 relief may be granted. See 28 U.S.C. 27 § 1915(e)(2)(B)(ii); § 1915A(b)(1). 28 /// 11 3:19-cv-00346-MMA-JLB 1 E. 2 Plaintiff alleges that Defendants Carmichael and John Doe #1 are members of the Eighth Amendment claims 3 “HCV Oversight Committee.” See FAC at 2. Plaintiff claims that this committee 4 initially denied his request for treatment on March 8, 2016, but eight days later approved 5 his treatment. See id. at 15. 6 To violate the Eighth Amendment, Plaintiff must allege facts sufficient to show 7 “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 475 U.S. 312, 347 8 (1981). “It is obduracy and wantonness, not inadvertence or error in good faith, that 9 characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” 10 Whitley v. Albers, 475 U.S. 312, 319 (1986). Thus, alleged deprivations under the Eighth 11 Amendment “must involve more than ordinary lack of due care for the prisoner’s 12 interests or safety.” Id. Mere negligence on the part of the prison official is not sufficient 13 to establish liability—the official’s conduct must have been wanton. Farmer v. Brennan, 14 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)). 15 To meet this high standard, a prisoner alleging an Eighth Amendment violation 16 must plead facts sufficient to “satisfy both the objective and subjective components of a 17 two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted). 18 First, he must allege that prison officials deprived him of the “minimal civilized measure 19 of life’s necessities.” Id. (citation omitted). Second, he must allege the officials “acted 20 with deliberate indifference in doing so.” Id. (citation and internal quotation marks 21 omitted). Prison officials act with “deliberate indifference ... only if [they are alleged to] 22 know[ ] of and disregard[ ] an excessive risk to inmate health and safety.” Gibson v. 23 County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal 24 quotation marks omitted). 25 While Plaintiff’s allegations of being diagnosed with Hepatitis C are sufficient to 26 meet the Eighth Amendment’s objective requirements, see Jett v. Penner, 439 F.3d 1091, 27 1096 (9th Cir. 2006) (a medical need is serious when the failure to treat it could result in 28 significant injury or the unnecessary and wanton infliction of pain), he must further allege 12 3:19-cv-00346-MMA-JLB 1 facts sufficient to show that each individual person he seeks to sue “kn[e]w of and 2 disregard[ed] an excessive risk to [his] health or safety.” Farmer v. Brennan, 511 U.S. 3 825, 837 (1994); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be 4 imposed on individual defendant under § 1983 only if plaintiff can show that defendant 5 proximately caused deprivation of federally protected right). 6 Plaintiff does not allege that Defendant Carmichael or John Doe #1 had any role in 7 his medical treatment prior to March 8, 2016 when they purportedly denied his request 8 for medical treatment. Instead, he alleges that they apparently reconsidered their initial 9 denial and approved treatment eight days later. See FAC at 15. Plaintiff does not specify 10 how an eight day delay in starting his treatment impacted his medical condition. He must 11 actually show how this delay is alleged to have caused harm. See McGuckin v. Smith, 12 974 F.2d 1050, 1060 (9th Cir. 1991) overruled on other grounds by WMX Techs., Inc. v. 13 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Shapley v. Nevada Bd. of State Prison 14 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). As such, the Court finds that Plaintiff has 15 failed to adequately state an Eighth Amendment deliberate indifference to a serious 16 medical need claim as to Defendants Carmichael and John Doe #1. 17 F. 18 Plaintiff seeks to hold Defendant John Doe #2 liable as the “Statewide Chief 19 Medical Executive.” FAC at 2, 11. He further seeks to hold Defendant R. Madden liable 20 in his role as the Warden for CEN. See id.at 2, 9-10. Finally, he seeks to hold Defendant 21 Ralph M. Diaz liable as the “Secretary for the CDCR.” Id. at 2, 9. Plaintiff does not 22 allege that any of these named Defendants were actually aware of Plaintiff’s medical 23 needs or played any direct role in his medical treatment. There is no respondeat superior 24 liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 25 1993). Rather, “deliberate indifference is a stringent standard of fault, requiring proof 26 that a municipal actor disregarded a known or obvious consequence of his action.” 27 Connick v. Thompson, 563 U.S. 51, 62 (2011) (“A less stringent standard of fault for a 28 failure-to-train claim ‘would result in de facto respondeat superior liability on Claims against Madden, Diaz, and John Doe #2 13 3:19-cv-00346-MMA-JLB 1 municipalities . . . .’”) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 392 2 (1989)). 3 “The inquiry into causation must be individualized and focus on the duties and 4 responsibilities of each individual defendant whose acts or omissions are alleged to have 5 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) 6 (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 457, 7 460 (9th Cir. 1986); Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 8 1999) (“Causation is, of course, a required element of a § 1983 claim.”). A person 9 deprives another “of a constitutional right, within the meaning of section 1983, if he does 10 an affirmative act, participates in another’s affirmative acts, or omits to perform an act 11 which he is legally required to do that causes the deprivation of which [the plaintiff 12 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has not 13 stated a claim against these Defendants because he has failed to allege facts regarding 14 what actions were taken or not taken by these Defendants which caused the alleged 15 constitutional violations. See Canton, 489 U.S. at 385 (“Respondeat superior and 16 vicarious liability will not attach under § 1983.”) (citing Monell, 436 U.S. at 694-95). 17 Accordingly, the Court dismisses Plaintiff’s Eighth Amendment claims against 18 Madden, Diaz, and John Doe #2 for failing to state a claim upon which relief may be 19 granted. 20 G. 21 For the reason set forth above, the Court finds Plaintiff fails to state any § 1983 Leave to Amend 22 claim upon which relief can be granted. However, because Plaintiff is proceeding pro se, 23 and having now been provided with “notice of the deficiencies in his complaint,” the 24 Court will also grant him an opportunity to cure those deficiencies. See Akhtar v. Mesa, 25 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th 26 Cir. 1992)). 27 28 /// 14 3:19-cv-00346-MMA-JLB 1 V. Conclusion 2 Based on the foregoing, the Court: 3 1. GRANTS Plaintiff’s Motion for Leave to File Excess Pages (Doc. No. 12) 4 2. DENIES Plaintiff’s Motion to Appoint Counsel (Doc. No. 11) without 5 prejudice; 6 3. 7 (Doc. No. 10); 8 4. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DIRECTS the Acting Secretary of the CDCR, or his designee, to collect from 9 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 10 payments from his account in an amount equal to twenty percent (20%) of the preceding 11 month’s income and forwarding those payments to the Clerk of the Court each time the 12 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 13 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 14 THIS ACTION; 15 16 5. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Acting Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 17 6. DISMISSES Plaintiff’s FAC for failing to state a claim upon which relief 18 may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and GRANTS him 19 forty-five (45) days leave from the date of this Order in which to file a Second Amended 20 Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Second Amended 21 Complaint must be complete by itself without reference to his original pleading. 22 Defendants not named and any claim not re-alleged in his First Amended Complaint will 23 be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 24 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 25 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 26 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 27 pleading may be “considered waived if not repled.”). 28 /// 15 3:19-cv-00346-MMA-JLB 1 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 2 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 3 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 4 1915A(b), and his failure to prosecute in compliance with a court order requiring 5 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 6 not take advantage of the opportunity to fix his complaint, a district court may convert the 7 dismissal of the complaint into dismissal of the entire action.”). 8 9 10 11 12 13 7. The Court DIRECTS the Clerk of Court to mail a court-approved form civil rights complaint to Plaintiff. IT IS SO ORDERED. DATE: June 25, 2019 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 3:19-cv-00346-MMA-JLB

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