Carroll v. California, State of et al, No. 3:2015cv01722 - Document 4 (S.D. Cal. 2015)

Court Description: ORDER granting plaintiff's 3 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 for failing to state a claim upon which relief may be granted and for seeking monetary damages against immune defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). The Court grants plai ntiff 45 days leave in which to re-open his case by filing an Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 10/6/15. (All non-registered users served via U.S. Mail Service)(form to plaintiff)(kas)

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Carroll v. California, State of et al Doc. 4 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Case No.: 3:15-cv-01722-LAB-WVG 11 12 Tremayne Carroll aka Tremaine Carroll H-73384, 13 14 15 16 ORDER: Plaintiff, 1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF No. 3) v. State of California; All RJD Mental Health Doctors; CDCR Mental Health , Defendants. 17 AND 18 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED AND FOR SEEKING MONETARY DAMAGES AGAINST IMMUNE DEFENDANTS 19 20 21 22 23 24 Tremayne Carroll aka Tremaine Carroll (“Plaintiff”), currently incarcerated at 25 Richard J. Donovan Correctional Facility ("RJD") located in San Diego, California, and 26 proceeding pro se, has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 27 1983 (ECF No. 1). 1 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm Dockets.Justia.com Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); 1 2 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 3 U.S.C. § 1915(a) (ECF No. 3). 4 II. Plaintiff’s Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 5 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400. See 28 U.S.C. § 1914(a).1 An 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, if a prisoner, like Plaintiff, is 11 granted leave to proceed IFP, he remains obligated to pay the entire fee in “increments,” 12 see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 13 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 14 281 F.3d 844, 847 (9th Cir. 2002). 15 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 16 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the 17 trust fund account statement (or institutional equivalent) for the prisoner for the six- 18 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 24 25 26 27 1 In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, 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) (eff. May 1, 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 2 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm 1 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 2 preceding month’s income, in any month in which the prisoner’s account exceeds $10, 3 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 4 § 1915(b)(2). 5 In support of his IFP Motion, Plaintiff has now submitted a certified copy of his 6 trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. 7 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, 8 but it shows that he has a current available balance of zero. See 28 U.S.C. § 1915(b)(4) 9 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action 10 or appealing a civil action or criminal judgment for the reason that the prisoner has no 11 assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 12 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 13 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds 14 available to him when payment is ordered.”). 15 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3) and 16 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 17 balance of the filing fees mandated will be collected by the California Department of 18 Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court 19 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 20 III. 21 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 22 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 23 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 24 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 25 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 26 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 27 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 3 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm 1 which are frivolous, malicious, fail to state a claim, or which seek damages from 2 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 3 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 4 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). All complaints must contain “a short and plain statement of the claim showing that 5 6 the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are 7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 10 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 11 requires the reviewing court to draw on its judicial experience and common sense.” Id. 12 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 13 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “When there are well-pleaded factual allegations, a court should assume their 14 15 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 16 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 17 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 18 allegations of material fact and must construe those facts in the light most favorable to 19 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 20 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while the court “ha[s] an obligation where the petitioner is pro se, 21 22 particularly in civil rights cases, to construe the pleadings liberally and to afford the 23 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 24 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 25 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 26 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 27 /// 4 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm 1 A. State of California – Eleventh Amendment 2 As an initial matter, the Court finds that to the extent Plaintiff names the State of 3 California and the California Department of Corrections and Rehabilitation (“CDCR”) 4 Mental Health Department as Defendants, his claims must be dismissed sua sponte 5 pursuant to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim and 6 for seeking damages against a defendant who is immune. The State of California and the 7 State of California’s correctional agency, sub-division, or department under its 8 jurisdiction, are not “persons” subject to suit under § 1983. Hale v. State of Arizona, 993 9 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of corrections is an 10 arm of the state, and thus, not a “person” within the meaning of § 1983). And if by 11 naming the CDCR Mental Health Department as a party, Plaintiff really seeks to sue the 12 State of California itself, his claims are clearly barred by the Eleventh Amendment. See 13 Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (“There can be no doubt . . . 14 that [a] suit against the State and its Board of Corrections is barred by the Eleventh 15 Amendment, unless [the State] has consented to the filing of such a suit.”). Therefore, to the extent Plaintiff seeks monetary damages2 against the CDCR, 16 17 CDCR Mental Health Department, or any relief against the State of California itself, his 18 Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. 19 § 1915A(b)(1) & (2). 20 B. Personal causation 21 Plaintiff fails to identify any specific individual in his Complaint. Plaintiff must 22 allege facts which describe how, or to what extent, an individual was actually aware of or 23 took part in any constitutional violation. Iqbal, 556 U.S. at 678 (citing Twombly, 550 24 U.S. at 557). “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff 25 26 2 27 Plaintiff does not identify any sort of relief that he is seeking in this action. It is not clear whether he is seeking monetary damages or remedies in the form of injunctive relief. 5 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm 1 must plead that each government-official defendant, through the official’s own individual 2 actions, has violated the Constitution.” Id. at 676; see also Jones v. Community 3 Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even 4 pro se plaintiff must “allege with at least me degree of particularity overt acts which 5 defendants engaged in” in order to state a claim). Thus, for this reason alone, the Court finds Plaintiff’s Complaint sets forth no facts 6 7 which might be liberally construed to support any sort of individualized constitutional 8 claim against any defendant. “Causation is, of course, a required element of a § 1983 9 claim.” Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The 10 inquiry into causation must be individualized and focus on the duties and responsibilities 11 of each individual defendant whose acts or omissions are alleged to have caused a 12 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing 13 Rizzo, 423 U.S. at 370-71). Accordingly, Plaintiff’s Complaint requires dismissal on this 14 basis pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126- 15 27; Rhodes, 621 F.3d at 1004. 16 D. 17 Even if Plaintiff had alleged facts sufficient to connect an individual defendant to Inadequate Medical Care Claims 18 any suffered injury, he has still failed to state a plausible Eighth Amendment claim. Only 19 “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary 20 and wanton infliction of pain . . . proscribed by the Eighth Amendment.” Estelle v. 21 Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks omitted). “A 22 determination of ‘deliberate indifference’ involves an examination of two elements: (1) 23 the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s 24 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), 25 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 26 (en banc) (quoting Estelle, 429 U.S. at 104). 27 /// 6 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm 1 First, “[b]ecause society does not expect that prisoners will have unqualified access 2 to health care, deliberate indifference to medical needs amounts to an Eighth Amendment 3 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 4 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 5 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 6 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 7 104). “The existence of an injury that a reasonable doctor or patient would find important 8 and worthy of comment or treatment; the presence of a medical condition that 9 significantly affects an individual’s daily activities; or the existence of chronic and 10 substantial pain are examples of indications that a prisoner has a ‘serious’ need for 11 medical treatment.” Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 12 1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). 13 Even assuming Plaintiff’s medical needs are sufficiently serious, his Complaint 14 fails to include any further “factual content” to show that any Defendant acted with 15 “deliberate indifference” to his needs. McGuckin, 914 F.2d at 1060; see also Jett v. 16 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678. Specifically, 17 Plaintiff alleges that he has been given unspecified medication that have caused him to 18 “become borderline diabetic,” as well as causing “weight gain, back trouble, blurry 19 vision, pain/suffering, stress, depression.” (Compl. at 3.) 20 Plaintiff’s Complaint lacks the “further factual enhancement” which demonstrates 21 any Defendant’s “purposeful act or failure to respond to [his] pain or possible medical 22 need,” and any “harm caused by [this] indifference.” Iqbal, 556 U.S. at 678 (citing 23 Twombly, 550 U.S. at 557); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) 24 (citing Jett, 439 F.3d at 1096). “A difference of opinion between a physician and the 25 prisoner–or between medical professionals–concerning what medical care is appropriate 26 does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th 27 Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d 7 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm 1 at 1122-23. Instead, Plaintiff must plead facts sufficient to “show that the course of 2 treatment the doctor[] chose was medically unacceptable under the circumstances and 3 that the defendant[] chose this course in conscious disregard of an excessive risk to [his] 4 health.” Snow, 681 F.3d at 988 (citation and internal quotations omitted). Plaintiff’s Complaint, however, contains no facts sufficient to show that any 5 6 specific individual acted with deliberate indifference to his plight by “knowing of and 7 disregarding an[y] excessive risk to his health and safety.” Farmer v. Brennan, 511 U.S. 8 825, 837 (1994). “Deliberate indifference is a high legal standard,” and claims of medical 9 malpractice or negligence are insufficient to establish a constitutional deprivation. 10 Simmons v. Navajo Cnty., 609 F.3d 1011, 1019 (9th Cir. 2010) (citing Toguchi, 391 F.3d 11 at 1060). 12 Accordingly, the Court finds that Plaintiff’s Complaint also fails to state an Eighth 13 Amendment inadequate medical care claim, and that therefore, it is subject to sua sponte 14 dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See 15 Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. Because Plaintiff is proceeding 16 without counsel, however, and the Court has now provided him “notice of the 17 deficiencies in his complaint,” it will also grant Plaintiff an opportunity to amend it. See 18 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 19 1258, 1261 (9th Cir. 1992)). 20 III. Conclusion and Order 21 Good cause appearing, IT IS HEREBY ORDERED that: 22 1. 23 24 Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 3) is GRANTED. 2. The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s 25 prison trust account the $350 filing fee owed in this case by collecting monthly payments 26 from the account in an amount equal to twenty percent (20%) of the preceding month’s 27 income and forward payments to the Clerk of the Court each time the amount in the 8 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm 1 account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 2 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED 3 TO THIS ACTION. 4 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey A. 5 Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 6 942883, Sacramento, California, 94283-0001. 7 IT IS FURTHER ORDERED that: 8 4. 9 Plaintiff’s Complaint is DISMISSED for failing to state a claim upon which relief may be granted and for seeking monetary damages against immune defendants 10 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However, the Court GRANTS 11 Plaintiff 45 days leave in which to re-open his case by filing an Amended Complaint 12 which cures all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint 13 must be complete by itself without reference to his original complaint. See S.D. CAL. 14 CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 15 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa 16 Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to 17 amend which are not re-alleged in an amended pleading may be “considered waived if 18 not repled.”). 19 If Plaintiff fails to file an Amended Complaint within the time provided, this civil 20 action will remain dismissed without prejudice based on Plaintiff’s failure to state a claim 21 upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 22 § 1915A(b)(1). 23 5. 24 25 The Clerk of Court is directed to mail Plaintiff a copy of a court approved civil rights complaint form. DATED: October 6, 2015 _____________________________ Hon. Larry Alan Burns United States District Judge 26 27 9 3:15-cv-01722-LAB-WVG I:\Everyone\_EFILE-PROSE\LAB\15cv1722-grt IFP and dsm.docm

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