Sheppard v. Hood et al, No. 3:2015cv00049 - Document 3 (S.D. Cal. 2015)
Court Description: ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is directed 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 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 for failing to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2)(B)(ii). Plaintiff granted 45 days leave from the date this Order is filed to file an Amended Complaint. Signed by Judge Cynthia Bashant on 4/22/2015. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service) (jah)
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Sheppard v. Hood et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 WILLIAM HENRY SHEPPARD, CDCR #C-61934, Plaintiff, vs. 16 17 ORDER: AND RODNEY G. HOOD, MD, et al., 18 19 15-cv-0049 BAS (RBB) 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) [ECF Doc. No. 2] 14 15 Civil No. Defendants. 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(ii) AND 1915A(b)(1) 20 21 William Henry Sheppard (“Plaintiff”), currently incarcerated at California 22 Men’s Colony (“CMC”) in San Luis Obispo, California, and proceeding pro se, has 23 filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 24 1). 25 Plaintiff claims six doctors employed by Alvarado Hospital in San Diego 26 provided him inadequate treatment and committed “medical malpractice” in 2010 27 after he was transported there from Centinela State Prison (“CEN”) for emergency 28 gallbladder surgery. (See Compl., ECF Doc. No. 1, at 1, 3.) Plaintiff claims that -1- 15cv0049 BAS (RBB) Dockets.Justia.com 1 during the surgery Defendants inserted a “ERCP stent,” and that it was not until 2 sometime in 2013, after he developed an infection, pancreatitis, and diabetes, that he 3 was told by unidentified prison medical officials at CEN that his ailments were 4 “caused by” the stent which was intended to be temporary. (Id.) Plaintiff seeks $6 5 million in general and compensatory damages against the doctors at Alvarado. (Id. at 6 7.) 7 Plaintiff has not prepaid the filing fees required by 28 U.S.C. § 1914(a) to 8 commence a federal civil action; instead, he has filed a Motion to Proceed In Forma 9 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2.) 10 I. MOTION TO PROCEED IFP 11 All parties instituting any civil action, suit or proceeding in a district court of 12 the United States, except an application for writ of habeas corpus, must pay a filing 13 fee of $400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s 14 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 15 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 16 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 17 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” 18 see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 19 whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor 20 v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 21 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 22 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of 23 [his] trust fund account statement (or institutional equivalent) for . . . the six-month 24 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 25 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust 26 27 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 28 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. 1 -2- 15cv0049 BAS (RBB) 1 account statement, the Court assesses an initial payment of 20% of (a) the average 2 monthly deposits in the account for the past six months, or (b) the average monthly 3 balance in the account for the past six months, whichever is greater, unless the 4 prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 5 institution having custody of the prisoner then collects subsequent payments, assessed 6 at 20% of the preceding month’s income, in any month in which his account exceeds 7 $10, and forwards those payments to the Court until the entire filing fee is paid. See 8 28 U.S.C. § 1915(b)(2). 9 In support of his IFP Motion, Plaintiff has submitted a certified copy of his 10 trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. 11 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account 12 statement, as well as the attached prison certificate issued by an accounting officer at 13 CMC verifying his available balances. Plaintiff’s statements show that while he had 14 average monthly deposits of $24.67 to his account, and an average monthly balance 15 of $4.26 during the 6-month period preceding the filing of this action, he had only 16 $.02 in his account at the time of filing. Thus, while the Court assesses Plaintiff’s 17 initial partial filing fee at $4.93 pursuant to 28 U.S.C. § 1915(b)(1), it appears he is 18 unable to pay that initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that 19 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 20 a civil action or criminal judgment for the reason that the prisoner has no assets and 21 no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 22 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 23 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 24 available to him when payment is ordered.”). 25 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. 26 No. 2), and will direct the California Department of Corrections and Rehabilitation 27 (“CDCR”) to collect the entire $350 balance of the filing fees mandated by 28 U.S.C. 28 -3- 15cv0049 BAS (RBB) 1 § 1914 and forward them to the Clerk of the Court pursuant to the installment 2 payment provisions set forth in 28 U.S.C. § 1915(b)(1). 3 II. INITIAL SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A 4 A. 5 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, Standard of Review 6 the PLRA also obligates the Court to review complaints filed by all persons 7 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 8 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 9 criminal law or the terms or conditions of parole, probation, pretrial release, or 10 diversionary program,” “as soon as practicable after docketing.” 28 U.S.C. 11 §§ 1915(e)(2) and 1915A(b). Under these screening statutes, the Court must sua 12 sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, 13 fail to state a claim, or which seek damages from defendants who are immune. See 28 14 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th 15 Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 16 Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 17 All complaints must contain “a short and plain statement of the claim showing 18 that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual 19 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 20 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 22 (2007)). “Determining whether a complaint states a plausible claim for relief [is] . . . a 23 context-specific task that requires the reviewing court to draw on its judicial 24 experience and common sense.” Id. The “mere possibility of misconduct” falls short 25 of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 26 F.3d 962, 969 (9th Cir. 2009). 27 “When there are well-pleaded factual allegations, a court should assume their 28 veracity, and then determine whether they plausibly give rise to an entitlement to -4- 15cv0049 BAS (RBB) 1 relief.” Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2 2000) (“[W]hen determining whether a complaint states a claim, a court must accept 3 as true all allegations of material fact and must construe those facts in the light most 4 favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 5 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil 6 Procedure 12(b)(6)”). 7 However, while the Court “ha[s] an obligation where the petitioner is pro se, 8 particularly in civil rights cases, to construe the pleadings liberally and to afford the 9 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th 10 Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may 11 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of 12 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 13 B. 14 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 15 under color of state law, violate federal constitutional or statutory rights.” Devereaux 16 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 17 substantive rights, but merely provides a method for vindicating federal rights 18 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal 19 quotation marks and citations omitted). “To establish § 1983 liability, a plaintiff must 20 show both (1) deprivation of a right secured by the Constitution and laws of the 21 United States, and (2) that the deprivation was committed by a person acting under 22 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 23 C. 24 First, the Court finds Plaintiff’s Complaint fails to state a claim and must be State Action 25 dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) and § 1915A(b)(1) because it 26 alleges no facts to show that any of the named Defendants, all identified only as 27 physicians employed by Alvarado Hospital, acted under color of state law. Lopez, 203 28 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. -5- 15cv0049 BAS (RBB) 1 “[P]rivate parties [do] not generally act[] under color of state law.” Price v. 2 Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Therefore, courts “start with the 3 presumption that private conduct does not constitute governmental action.” Sutton v. 4 Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). “In order for 5 private conduct to constitute governmental action, ‘something more’ must be 6 present.” Id. (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982)). 7 In the context of medical services provided to prisoners like Plaintiff, the 8 Supreme Court has held that “something more,” requires him to allege that the 9 “private physician or hospital,” he seeks to sue has “contract[ed] with a public prison 10 system to provide treatment for inmates,” and has “perform[ed] a public function” 11 sufficient to “be found to [have] act[ed] under color of law for purposes of § 1983.” 12 West v. Atkins, 487 U.S. 42, 56 n.15 (1988). 13 Here, Plaintiff has failed to allege that the Alvarado doctors he seeks to hold 14 liable were employed by or acted under contract with the state of California to 15 provide medical services to its prisoners when they treated him in 2010. Therefore, 16 his Complaint fails to state a claim under § 1983 because it lacks the “factual content” 17 required to show Defendants’ actions were “fairly attributable to the State.” Id. at 54; 18 Iqbal, 556 U.S. at 678; cf. Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th 19 Cir. 1991) (finding district court’s sua sponte dismissal improper where prisoner’s 20 complaint contained allegations that defendants, a private hospital and ambulance 21 service did act “under contract with the state of Arizona to provide medical services 22 to indigent citizens.”). 23 D. 24 Second, even if Plaintiff had alleged the Alvarado doctors he has named as Individual Liability 25 Defendants acted under color of state law, his Complaint also fails to “plead that each 26 . . . defendant, through the official’s own individual actions, has violated the 27 Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Cmty. Redev. Agency of City 28 of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege -6- 15cv0049 BAS (RBB) 1 with at least some degree of particularity overt acts which defendants engaged in” in 2 order to state a claim); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 3 (“Liability under § 1983 must be based on the personal involvement of the 4 defendant.”). 5 As currently pleaded, Plaintiff’s Complaint simply lists six individual 6 physicians as Defendants in the caption, see Compl. at 1, 2, but the body of his 7 pleading makes no further mention of any of these doctors, except for Dr. Hood, who 8 is alleged in only a perfunctory and wholly conclusory fashion to have “showed 9 deliberate indifference to [his] serious medical needs.” Id. at 3. 10 Each defendant may be held liable under § 1983 only if he or she is alleged to 11 have been “personally involved in the constitutional deprivation.” Lolli v. Cnty. of 12 Orange, 351 F.3d 410, 418 (9th Cir. 2003). Plaintiff’s Complaint, however, fails to 13 include any “factual content that [would] allow[] the court to draw [a] reasonable 14 inference” in support of an individualized constitutional violation personally 15 committed by any of the named doctors. Iqbal, 556 U.S. at 678 (“A pleading that 16 offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of 17 action will not do.’”) (quoting Twombly, 550 U.S. at 555, 557.) To show personal 18 liability, Plaintiff must include in his pleading at least some description of personal 19 acts taken by each individual defendant which he believes caused his Eighth 20 Amendment rights to be violated. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); 21 Iqbal, 556 U.S. at 678 (noting that while “detailed factual allegations” are not 22 required, “unadorned, the defendant-unlawfully-harmed-me accusation[s]” are 23 insufficient to state a claim to relief that is “plausible on its face.”) (citing Twombly, 24 550 U.S. at 555, 570.) 25 For this additional reason, the Court finds Plaintiff’s Complaint fails to state a 26 claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii), 27 § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 28 -7- 15cv0049 BAS (RBB) 1 E. 2 Finally, the Court finds that Plaintiff’s Complaint also fails to adequately plead Inadequate Medical Care 3 a constitutional violation–namely, an Eighth Amendment claim based on inadequate 4 medical care. A prisoner’s claim of inadequate medical care does not constitute cruel 5 and unusual punishment unless it rises to the level of “deliberate indifference to 6 serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). “Deliberate 7 indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 8 Cir. 2004). This standard “consists of two parts,” one objective, and one subjective. 9 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 10 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” 11 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 12 298 (1991)). Second, the prison official must act with a “sufficiently culpable state of 13 mind,” which entails more than mere negligence, but less than conduct undertaken 14 “for the very purpose of causing, harm.” Id. at 837. A prison official does not act with 15 deliberate indifference unless he or she “knows of and disregards an excessive risk to 16 inmate health or safety.” Id. “If a [prison official] should have been aware of the risk, 17 but was not, then the [official] has not violated the Eighth Amendment, no matter 18 how severe the risk.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th 19 Cir. 2002) (citation omitted). 20 Moreover, “the indifference to [a prisoner’s] medical needs must be substantial. 21 Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 22 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) 23 (quoting Estelle, 429 U.S. at 105-06.) “[A] complaint that a physician has been 24 negligent in diagnosing or treating a medical condition does not state a valid claim of 25 medical mistreatment under the Eighth Amendment. Medical malpractice does not 26 become a constitutional violation merely because the victim is a prisoner.” Estelle, 27 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 28 1995); McGuckin v. Smith, 974 F.2d 1050, 1050 (9th Cir. 1992), overruled on other -8- 15cv0049 BAS (RBB) 1 grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 2 Even gross negligence is insufficient to establish deliberate indifference to serious 3 medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 4 Here, the Court finds Plaintiff’s claims of having suffered an infection, 5 pancreatitis, and diabetes, which he alleges were “caused by the prolonged and 6 excessive implantation of [a] temporary stent,” (Compl., ECF Doc. No. 1 at 3), are 7 sufficient to show a facially plausible and objectively serious medical need. See 8 McGuckin, 974 F.2d at 1059-60 (The “existence of an injury that a reasonable doctor 9 or patient would find important and worthy of comment or treatment; the presence of 10 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 12 has a ‘serious’ need for medical treatment.”); Rodenhurst v. Hawaii, No. 13 CV10-1237-PHX-GMS, 2010 WL 3719296, at *6 (D. Ariz. Sept. 15, 2010) (finding 14 prisoner’s “pancreatitis, high cholesterol, diabetes and renal insufficiency” sufficient 15 to show he suffered a “serious medical need”), aff’d sub nom. Rodenhurst v. Bauman, 16 509 F. App’x 634 (9th Cir. 2013); Iqbal, 556 U.S. at 678. 17 However, Plaintiff’s Complaint fails to further contain enough “factual 18 content” which would “allow the court to draw a reasonable inference” of deliberate 19 indifference on the part of any named Defendant. Iqbal, 556 U.S. at 678. At most, and 20 assuming Plaintiff’s allegations are true, the error he describes sounds only in 21 negligence; indeed, he himself claims his injuries were the result of “medical 22 malpractice,” “negligence,” and “incompetence.” (Compl., Doc. No. 1, at 3.) And 23 while he also describes Dr. Hood as having acted with “deliberate indifference,” (id.), 24 he does not further support this conclusion by alleging facts to show that Hood, or 25 any other Defendant, “kn[ew] of and disregard[ed] an excessive risk to [his] health or 26 safety” when implanted the stent which is alleged to have caused him harm three 27 years later. Farmer, 511 U.S. at 837. Deliberate indifference is “a state of mind more 28 blameworthy than negligence” and it “requires ‘more than ordinary lack of due care -9- 15cv0049 BAS (RBB) 1 for the prisoner’s interests or safety.’” Id. at 835 (quoting Whitley v. Albers, 475 U.S. 2 312, 319 (1986)). 3 Therefore, the Court finds that Plaintiff’s Complaint fails to allege facts 4 sufficient to support an Eighth Amendment claim against any Defendant and that it is 5 subject to dismissal for this additional reason pursuant to 28 U.S.C. § 1915(e)(2)(B) 6 and § 1915A(b)(1). Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 7 F. 8 Because Plaintiff is proceeding without counsel, and it is not “absolutely clear Leave to Amend 9 that no amendment can cure” the defects of pleading set forth above, the Court will 10 grant him an opportunity to amend. See Lucas v. Dept. of Corr., 66 F.3d 245, 248 11 (9th Cir. 1995); Lopez, 203 F.3d at 1131. 12 III. CONCLUSION AND ORDER 13 For the reasons set forth above, the Court: 14 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. 15 § 1915(a) (ECF Doc. No. 2). 16 2. DIRECTS the Secretary of the CDCR, or his designee to collect from 17 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting 18 monthly payments from the account in an amount equal to twenty percent (20%) of 19 the preceding month’s income and forwarding them to the Clerk of the Court each 20 time the amount in his account exceeds $10 in accordance with 28 U.S.C. 21 § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE 22 NAME AND NUMBER ASSIGNED TO THIS ACTION. 23 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeffrey 24 A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. 25 Box 942883, Sacramento, California, 94283-0001. 26 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon 27 which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 § 1915A(b)(1), and GRANTS him forty-five (45) days leave from the date of this -10- 15cv0049 BAS (RBB) 1 Order in which to file an Amended Complaint that cures the deficiencies of pleading 2 described above. Plaintiff’s Amended Complaint must be complete by itself without 3 reference to his original complaint. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 4 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 5 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 6 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 7 re-alleged in an amended pleading may be “considered waived if not repled.”). 8 Should Plaintiff elect not to proceed by filing a Amended Complaint within the 9 time provided, the Court will enter a final Order of dismissal of this civil action for 10 failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), 11 and for failure to prosecute in compliance with a Court Order requiring amendment. 12 13 14 15 IT IS SO ORDERED. DATED: April 22, 2015 Hon. Cynthia Bashant United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- 15cv0049 BAS (RBB)
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