Bryant v. San Diego County Sheriff et al, No. 3:2019cv00648 - Document 6 (S.D. Cal. 2019)
Court Description: ORDER Granting 5 Motion for Leave to Proceed in Forma Pauperis; Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint. The Secret ary 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 payments from the trust account in an amount equal to 20% of the preceding month income cr edited 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). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Anthony J. Battaglia on 6/3/2019. (All non-registered users served via U.S. Mail Service) Complaint form with copy of order sent to Plaintiff via U.S. mail.(acc)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 VINCENT BRYANT, CDCR #BI-2557, ORDER: Plaintiff, 13 14 Case No.: 3:19-cv-00648-AJB-BGS vs. (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [Doc. No. 5]; AND 15 16 SAN DIEGO COUNTY SHERIFF; JOHN DOE; JANE DOE, 17 Defendants. (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 18 19 20 21 22 23 24 25 Vincent Bryant (“Plaintiff”), a state inmate currently incarcerated at the California 26 Rehabilitation Center located in Norco, California, and proceeding pro se, has filed a civil 27 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. See Doc. No. 1 at 1. 28 1 3:19-cv-00648-AJB-BGS 1 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the 2 time of filing; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2). 4 I. 5 Plaintiff’s IFP Motion All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 11 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 12 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 13 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 14 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 15 2002). 16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 20 trust account statement, the Court assesses an initial payment of 20% of (a) the average 21 monthly deposits in the account for the past six months, or (b) the average monthly 22 balance in the account for the past six months, whichever is greater, unless the prisoner 23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 24 custody of the prisoner then collects subsequent payments, assessed at 20% of the 25 26 1 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:19-cv-00648-AJB-BGS 1 preceding month’s income, in any month in which his account exceeds $10, and forwards 2 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 3 Bruce, 136 S. Ct. at 629. 4 In support of his IFP motion, Plaintiff has submitted a certified copy of his trust 5 account statement, as well as a prison certificate, verified by an accounting officer, 6 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See Doc. No. 5 at 4-7; 7 Andrews, 398 F.3d at 1119. These statements shows that while Plaintiff had an average 8 monthly deposit of $13.54 and an average monthly balance of $16.17 in his trust account 9 during the 6-month period preceding the filing of his Complaint. However, he had only 10 an available balance of $0.00 at the time of filing. Therefore, the Court does not assess an 11 initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 12 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 13 or criminal judgment for the reason that the prisoner has no assets and no means by 14 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 15 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 16 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 17 available to him when payment is ordered.”). 18 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP, declines to 19 “exact” an initial filing fee because his prison certificate shows he “has no means to pay 20 it,” Bruce, 136 S. Ct. at 629, and directs the Acting Secretary for the CDCR, or their 21 designee, to instead collect the entire $350 balance of the filing fees required by 28 22 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment 23 payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id. 24 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 25 A. 26 Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre- Standard of Review 27 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 28 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 3 3:19-cv-00648-AJB-BGS 1 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 2 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 3 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 4 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 5 the targets of frivolous or malicious suits need not bear the expense of responding.’” 6 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 7 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 11 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 12 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 14 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 15 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 16 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 20 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 21 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 22 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 23 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 24 (9th Cir. 2009). 25 B. 26 In September of 2018 Plaintiff was housed at the San Diego Central Jail. (See Plaintiff’s Allegations 27 Compl. at 1.) Plaintiff alleges “all Defendants in this Complaint ‘knowingly’ knew about 28 my medical condition.” (Id.) Plaintiff had a “hernia in nature” which he claims “caused 4 3:19-cv-00648-AJB-BGS 1 acute excruciating pain” on September 18, 2018. (Id.) Plaintiff contends he was “denied 2 medical attention for 4 months.” (Id.) Despite submitting grievances “12 times formally 3 and verbally,” all were “rebuffed.” (Id.) As a result of Defendants’ actions, Plaintiff 4 claims that he went through “physical acute pain” for “4 months.” (Id.) 5 In addition, Plaintiff claims, “all the named Defendants knew” Plaintiff needed to 6 “use the law library to meet court imposed deadlines.” (Id.) Plaintiff alleges that the 7 purported actions by Defendants caused him to “lose his right to pursue ongoing legal 8 actions.” (Id.) 9 10 Plaintiff seeks injunctive relief and damages in the amount of the “cost of ‘in forma pauperis filing’ paid to the U.S. District Court.” (Id. at 5.) 11 C. 12 As an initial matter, the Court finds that to the extent Plaintiff names the San Diego Improper Defendants & Municipal Liability 13 County Sheriff’s Department as a Defendant, his claims must be dismissed sua sponte 14 pursuant to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim upon 15 which § 1983 relief can be granted. 16 Local law enforcement departments, like the San Diego Sheriff’s Department, 17 municipal agencies, or subdivisions of that department or agency, are not proper 18 defendants under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 19 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an appropriate 20 means of pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. 21 Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes 22 liability on any ‘person’ who violates someone’s constitutional rights ‘under color of 23 law.’ Cook County Jail is not a ‘person.’”). 24 While the County of San Diego itself may be considered a “person” and therefore, 25 a proper defendant under § 1983, see Monell v. Department of Social Services, 436 U.S. 26 658, 691 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), 27 Plaintiff has not named the County as a Defendant. Moreover, as a municipality, the 28 County may be held liable under § 1983–but only where the Plaintiff alleges facts to 5 3:19-cv-00648-AJB-BGS 1 show that a constitutional deprivation was caused by the implementation or execution of 2 “a policy statement, ordinance, regulation, or decision officially adopted and 3 promulgated” by the County, or a “final decision maker” for the County. Monell, 436 4 U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997); 5 Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other words, “respondeat superior 6 and vicarious liability are not cognizable theories of recovery against a municipality.” 7 Miranda v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002). “Instead, a 8 Monell claim exists only where the alleged constitutional deprivation was inflicted in 9 ‘execution of a government’s policy or custom.’” Id. (quoting Monell, 436 U.S. at 694). 10 As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C. 11 §§ 1915(e)(2) and 1915A(b) because he has failed to allege any facts which “might 12 plausibly suggest” that the County itself violated his constitutional rights. See Hernandez 13 v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading 14 standards to Monell claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42 15 U.S.C. § 1983 provides for relief only against those who, through their personal 16 involvement as evidenced by affirmative acts, participation in another’s affirmative acts, 17 or failure to perform legally required duties, cause the deprivation of plaintiff’s 18 constitutionally protected rights). 19 D. 20 At the time the events in the Complaint occurred, it appears that Plaintiff was a Medical care claims 21 pretrial detainee. A pretrial detainee’s claim of the denial of the right to adequate 22 medical care is analyzed under an objective deliberate indifference standard. See Gordon 23 v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). The elements of such a claim 24 are: “(i) the defendant made an intentional decision with respect to the conditions under 25 which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk 26 of suffering serious harm; (iii) the defendant did not take reasonable available measures 27 to abate that risk, even though a reasonable official in the circumstances would have 28 appreciated the high degree of risk involved—making the consequences of the 6 3:19-cv-00648-AJB-BGS 1 defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused 2 the plaintiff’s injuries.” Id. at 1125. “With respect to the third element, the defendant’s 3 conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts 4 and circumstances of each particular case.’” Id. (quoting Castro v. City of Los Angeles, 5 833 F.3d 1060, 1071 (9th Cir. 2016)). A plaintiff must “prove more than negligence but 6 less than subjective intent—something akin to reckless disregard.” Id. (quoting Castro, 7 833 F.3d at 1071). The “mere lack of due care” is insufficient. Id. (internal quotation 8 omitted); see Hopper v. Cty. of Riverside, No. EDCV1801277JAKDFM, 2018 WL 9 6092563, at *4 (C.D. Cal. Nov. 20, 2018). 10 Here, Plaintiff’s allegations fall far short of stating a claim of inadequate medical 11 care and he fails to provide any description or identification of the individuals whom he 12 claims denied him adequate medical care. He states on one occasion he was denied 13 medical attention but provides no specific factual allegations with regard to this claim. 14 (See Compl. at 3.) A difference of opinion between a pretrial detainee and the doctors or 15 other trained medical personnel at the Jail as to the appropriate course or type of medical 16 attention he requires does not amount to deliberate indifference, see Snow v. McDaniel, 17 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 18 1989)), and any delay in providing an appropriate course of treatment does not by itself 19 show deliberate indifference, unless the delay is alleged have caused harm. See 20 McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1991), overruled on other grounds by 21 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Shapley v. Nevada 22 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) Because Plaintiff’s inadequate medical care claims currently fails to meet, or even 23 24 attempt to address any of these pleading requirements, these claims must be dismissed 25 sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 26 /// 27 /// 28 /// 7 3:19-cv-00648-AJB-BGS 1 E. 2 Plaintiff also claims he has been denied access to the law library causing him to Access to the Courts 3 “lose his right to pursue on going legal actions.” (Compl. at 3.) The Court construes this 4 as a denial of access to the courts claim. Prisoners have a constitutional right to access 5 to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The right is limited to the filing 6 of direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. Claims for 7 denial of access to the courts may arise from the frustration or hindrance of “a litigating 8 opportunity yet to be gained” (forward-looking access claim) or from the loss of a suit 9 that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 10 403, 412-15 (2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) 11 (differentiating “between two types of access to court claims: those involving prisoners’ 12 right to affirmative assistance and those involving prisoners’ rights to litigate without 13 active interference.”). 14 However, Plaintiff must allege “actual injury” as the threshold requirement to any 15 access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual 16 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 17 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also 18 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the 19 “inability to file a complaint or defend against a charge”). The failure to allege an actual 20 injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to 21 show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518 22 U.S. at 353 & n.4). 23 In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable” 24 underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the 25 underlying claim must be set forth in the pleading “as if it were being independently 26 pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may be 27 awarded as recompense but not otherwise available in some suit that may yet be 28 brought.” Id. at 415. 8 3:19-cv-00648-AJB-BGS Plaintiff’s Complaint fails to allege the actual injury required to state an access to 1 2 courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Thus, the Court 3 finds that Plaintiff’s Complaint fails to include any “factual matter” to show how or why 4 any of the individual Defendants caused him to suffer any “actual prejudice” “such as the 5 inability to meet a filing deadline or to present a claim,” with respect to any case. Lewis, 6 518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 678. 7 Thus, because Plaintiff has failed to allege facts sufficient to show that Defendants 8 caused him to suffer any “actual injury” with respect to any non-frivolous direct criminal 9 appeal, habeas petition, or civil rights action he may have filed, see Lewis, 518 U.S. at 10 354, the Court finds Plaintiff’s access to courts claims must be dismissed for failing to 11 state a plausible claim upon which § 1983 relief can be granted. See 28 U.S.C. 12 § 1915(e)(2)(B)(ii), § 1915A(b)(1) 13 F. 14 A pro se litigant must be given leave to amend his pleading to state a claim unless Leave to Amend 15 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d 16 at 1130 (noting leave to amend should be granted when a complaint is dismissed under 17 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). 18 Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim upon which 19 relief can be granted, it will provide him a chance to fix the pleading deficiencies 20 discussed in this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 21 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 22 III. Conclusion and Order 23 For all the reasons discussed, the Court: 24 1. 25 (Doc. No. 2). 26 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) DIRECTS the Acting Secretary for the CDCR, or their designee, to collect 27 from Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 28 payments from his account in an amount equal to twenty percent (20%) of the preceding 9 3:19-cv-00648-AJB-BGS 1 month’s income and forwarding those payments to the Clerk of the Court each time the 2 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 3 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 4 ASSIGNED TO THIS ACTION. 5 6 7 8 9 3. 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. 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A; 5. GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint 10 which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned, 11 however, that should he choose to file an Amended Complaint, it must be complete by 12 itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re- 13 alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. 14 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 15 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 16 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 17 amended pleading may be “considered waived if not repled.”). 18 19 20 6. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint. IT IS SO ORDERED. 21 22 Dated: June 3, 2019 23 24 25 26 27 28 10 3:19-cv-00648-AJB-BGS
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