-BGS Manzo v. Mani et al, No. 3:2011cv00123 - Document 3 (S.D. Cal. 2011)
Court Description: ORDER granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis. Warden of Metropolitan Correctional Center (MCC) to collect the $6.17 initial partial filing fee assessed by this Order and forward to Clerk of Court, if those f unds are available at the time this Order is executed. Warden of MCC to collect from Pla's prison trust acct the balance of the $350 filing fee by collecting monthly payments in an amount equal to 20% of the preceding month's inc ome credited to the acct and forward to Clerk of Court each time the amount in the acct exceeds $10 in accordance w/ 28 USC 1915(b)(2). Pla's Complaint is dismissed w/o prejudice for failing to state a claim upon which relief may be granted pursuant 28 USC 1915(e)(2)(B) and 1915A(b). Pla is granted 45 days leave from the date of this Order to file a First Amended Complaint. Signed by Judge Irma E. Gonzalez on 3/10/2011. (cc: MCC) (Blank First Amended 1983 Complaint form t/w copy if this Order mailed to Plaintiff)(All non-registered users served via U.S. Mail Service)(jah)
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-BGS Manzo v. Mani et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 EZEQUIEL MANZO, BOP #46955-198, Civil No. Plaintiff, 13 vs. 16 17 18 MANI, M.D.; GARCIA, Counselor for FBOP; FEDERAL BOARD OF PRISONS HEALTH CARE SERVICES; FEDERAL BOARD OF PRISONS, 19 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING INITIAL PARTIAL FILING FEE AND GARNISHING BALANCE FROM PRISONER’S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a); and 14 15 11cv0123 IEG (BGS) Defendants. 20 (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 21 22 Plaintiff, Ezequiel Manzo, an inmate currently incarcerated at the Metropolitan 23 24 Correctional Center located in San Diego, California, has filed a civil rights action pursuant to 25 42 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis 26 (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. 27 /// 28 /// K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -1- 11cv0123 IEG (BGS) Dockets.Justia.com 1 I. M OTION TO P ROCEED IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the United 3 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 4 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 5 only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 6 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP 7 remains obligated to pay the entire fee in installments, regardless of whether his action is 8 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 9 (9th Cir. 2002). 10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 11 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 12 statement (or institutional equivalent) for the prisoner for the six-month period immediately 13 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 14 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 15 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 16 (b) the average monthly balance in the account for the past six months, whichever is greater, 17 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 18 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 19 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 20 forward those payments to the Court until the entire filing fee is paid. 21 § 1915(b)(2). See 28 U.S.C. 22 The Court finds that Plaintiff has submitted a certified copy of his trust account statement 23 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. C AL. C IVLR 3.2. Andrews, 398 F.3d at 1119. 24 Plaintiff’s statement shows an average monthly balance of $27.50 and average monthly deposits 25 totaling $30.83. Based on this financial information, the Court GRANTS Plaintiff’s Motion to 26 Proceed IFP [Doc. No. 2] and assesses an initial partial filing fee of $6.17 pursuant to 28 U.S.C. 27 § 1915(b)(1). 28 /// K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -2- 11cv0123 IEG (BGS) 1 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A 2 A. Standard 3 The PLRA also obligates the Court to review complaints filed by all persons proceeding 4 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 5 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 6 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 7 practicable after docketing.” 8 provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion 9 thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from 10 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 11 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 12 446 (9th Cir. 2000) (§ 1915A). See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 13 Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte 14 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is 15 frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 16 324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing 17 an IFP or prisoner’s suit make and rule on its own motion to dismiss before effecting service of 18 the Complaint by the U.S. Marshal pursuant to F ED.R.C IV.P. 4(c)(2). Id. at 1127 (“[S]ection 19 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint 20 that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 21 (discussing 28 U.S.C. § 1915A). 22 “[W]hen determining whether a complaint states a claim, a court must accept as true all 23 allegations of material fact and must construe those facts in the light most favorable to the 24 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 25 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 26 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 27 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 28 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -3- 11cv0123 IEG (BGS) 1 B. 2 While Plaintiff filed this action pursuant to 42 U.S.C. § 1983, he names only Federal 3 actors and two Federal Agencies as Defendants. Accordingly, the Court will consider Plaintiff’s 4 claims to arise under Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). 5 Bivens established that “compensable injury to a constitutionally protected interest [by federal 6 officials alleged to have acted under color of federal law] could be vindicated by a suit for 7 damages invoking the general federal question jurisdiction of the federal courts [pursuant to 28 8 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978). “Actions under § 1983 and 9 those under Bivens are identical save for the replacement of a state actor under § 1983 by a 10 Bivens Action federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). 11 Bivens provides that “federal courts have the inherent authority to award damages against 12 federal officials to compensate plaintiffs for violations of their constitutional rights.” Western 13 Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). However, a Bivens 14 action may only be brought against the responsible federal official in his or her individual 15 capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Bivens does not 16 authorize a suit against the government or its agencies for monetary relief. FDIC v. Meyer, 510 17 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); Daly- 18 Murphy, 837 F.2d at 355. Thus, because Plaintiff names the Federal Board of Prisons and the 19 Federal Board of Prisons Health Care Services, which are agencies of the Federal Government, 20 these Defendants must be dismissed from this action. 21 C. Inadequate Medical Care Claims 22 Plaintiff claims that his Eighth Amendment rights have been violated by inadequate 23 medical care. However, because it is not clear whether Plaintiff was a pre trial detainee at the 24 time he alleges the violations occurred or a prisoner serving a criminal sentence, the Eighth 25 Amendment may not apply to him. Bell v Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Eighth 26 Amendment scrutiny is appropriate only after the State has complied with the constitutional 27 guarantees traditionally associated with criminal prosecutions. . . . [and] the State does not 28 acquire the power to punish with which the Eighth Amendment is concerned until after it has K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -4- 11cv0123 IEG (BGS) 1 secured a formal adjudication of guilt in accordance with due process of law.”); Gibson v. 2 County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (“Because [petitioner] had not been 3 convicted of a crime, but had only been arrested, his rights derive from the due process clause 4 rather than the Eighth Amendment’s protection against cruel and unusual punishment.”). 5 Rather, Plaintiff’s conditions of confinement claims must be analyzed under “the more 6 protective” substantive due process standard. Jones v. Blanas, 393 F.3d 918, 931-33 (9th Cir. 7 2004); see also Wolfish, 441 U.S. at 538-39 (“Absent a showing of an express intent to punish 8 on the part of detention facility officials, . . . if a particular condition or restriction of pretrial 9 detention is reasonably related to a legitimate governmental objective, it does not, without more, 10 amount to ‘punishment.’”); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) 11 (“The concept of ‘substantive due process,’ semantically awkward as it may be, forbids the 12 government from depriving a person of life, liberty, or property in such a way that ‘shocks the 13 conscience’ or ‘interferes with rights implicit in the concept of ordered liberty.’”) (quoting 14 United States v. Salerno, 481 U.S. 739, 746 (1987)). However, “the due process clause imposes, 15 at a minimum, the same duty the Eighth Amendment imposes: ‘persons in custody ha(ve) the 16 established right not to have officials remain deliberately indifferent’” to their needs. Gibson, 17 290 F.3d at 1187 (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)); Lolli v. County 18 of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Court will therefore look to Eighth 19 Amendment standards to determine the minimum level of protection afforded Plaintiff. 20 In his Complaint, Plaintiff alleges that Defendant Mani gave him eye drops which later 21 caused side effects. (See Compl. at 3.) Where a prisoner’s Eighth Amendment claim is one of 22 inadequate medical care, the prisoner must allege “acts or omissions sufficiently harmful to 23 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 24 (1976). Such a claim has two elements: “the seriousness of the prisoner’s medical need and the 25 nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 26 Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th 27 Cir. 1997). A medical need is serious “if the failure to treat the prisoner’s condition could result 28 in further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -5- 11cv0123 IEG (BGS) 1 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 2 “the presence of a medical condition that significantly affects an individual’s daily activities.” 3 Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 4 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 5 U.S. 825, 834 (1994). 6 Even if Plaintiff has alleged facts sufficient to establish the existence of a serious medical 7 need, he must also allege that each Defendant’s response to his need was deliberately indifferent. 8 Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials 9 deny, delay, or intentionally interfere with a prescribed course of medical treatment, or it may 10 be shown by the way in which prison medical officials provide necessary care. Hutchinson v. 11 United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a prisoner’s civil 12 rights have been abridged with regard to medical care, however, “the indifference to his medical 13 needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 14 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 15 1980) (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 16 Cir. 2004). 17 Here, Plaintiff’s allegations against Defendant Mani appear to be that Defendant Mani 18 gave him medication for his eye condition that later caused him to suffer an injury. However, 19 inadequate treatment due to malpractice, or even gross negligence, does not amount to a 20 constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334 21 (9th Cir. 1990). Accordingly, the Court dismisses Plaintiff’s Eighth Amendment inadequate medical care 22 23 claims for failing to state a claim upon which relief can be granted. 24 The Court dismisses Plaintiff’s Complaint for failing to state a claim upon which relief 25 can be granted. See 28 U.S.C. § 1915(e)(2) & § 1915A. However, Plaintiff will be permitted 26 the opportunity to file an Amended Complaint. 27 /// 28 /// K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -6- 11cv0123 IEG (BGS) 1 III. C ONCLUSION AND O RDER 2 Good cause appearing therefor, IT IS HEREBY ORDERED that: 3 1. 4 is GRANTED. 5 2. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] The Warden for the Metropolitan Correctional Center, or his designee, is ordered 6 to collect the $6.17 initial partial filing fee assessed by this Order and forward that amount 7 to the Clerk of Court, if those funds are available at the time this Order is executed. THE 8 INITIAL PARTIAL FILING FEE SHALL BE CLEARLY IDENTIFIED BY THE NAME AND 9 NUMBER ASSIGNED TO THIS ACTION. 10 3. The Warden for the Metropolitan Correctional Center, or his designee, is ordered 11 to collect from Plaintiff’s prison trust account the balance of the $350 filing fee owed in this case 12 by collecting monthly payments from Plaintiff’s prison trust account in an amount equal to 13 twenty percent (20%) of the preceding month’s income credited to the account and forward 14 payments to the Clerk of the Court each time the amount in the account exceeds $10 in accord- 15 ance with 28 U.S.C. § 1915(b)(2). ALL MONTHLY PAYMENTS SHALL BE CLEARLY 16 IDENTIFIED BY THAT NAME AND NUMBER ASSIGNED TO THIS ACTION. 17 18 4. The Clerk of the Court is directed to serve a copy of this Order on Warden, Metropolitan Correctional, 808 Union Street, San Diego, California, 92101. 19 IT IS FURTHER ORDERED that: 20 5. Plaintiff’s Complaint is DISMISSED without prejudice for failing to state a claim 21 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). 22 However, Plaintiff is further GRANTED forty five (45) days leave from the date this Order is 23 filed in which to file a First Amended Complaint which cures all the deficiencies of pleading 24 noted above. Plaintiff’s Amended Complaint must be complete in itself without reference to 25 his previous pleading. See S.D. C AL. C IVLR 15.1. Defendants not named and all claims not re- 26 alleged in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 27 567 (9th Cir. 1987). 28 K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -7- 11cv0123 IEG (BGS) 1 2 3 4 6. The Clerk of Court is directed to mail a Court approved form civil rights complaint to Plaintiff. IT IS SO ORDERED. DATED: March 10, 2011 5 IRMA E. GONZALEZ, Chief Judge United States District Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\CHMB_11\10-11\Adam\Pro Se\11cv0123-grt IFP & dsm.wpd -8- 11cv0123 IEG (BGS)
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