Peavy v. Cain et al, No. 3:2011cv01434 - Document 4 (S.D. Cal. 2011)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying without prejudice 3 Motion to Appoint Counsel; the complaint is dismissed without prejudice; plaintiff's claims arising from alleged violations of the Armstrong Remedial Plan are dismissed without prejudice but without leave to amend; if plaintiff wishes to amend his complaint, he must file his amended complaint no later than Wednesday, January 4, 2012; if plaintiff does not file an amended complaint within the time permitted, this action will be dismissed without leave to amend; the Clerk is directed to replace plaintiff's prison address in the docket with his current address; Signed by Judge Larry Alan Burns on 12/7/11. (All non-registered users served via U.S. Mail Service)(kaj)
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Peavy v. Cain et al Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARY L. PEAVY, 12 CASE NO. 11cv1434-LAB (WVG) Plaintiff, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; vs. 13 14 15 ORDER DISMISSING COMPLAINT; AND DOCTOR CAIN, et al., 16 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL Defendant. 17 18 Plaintiff Gary Peavy, formerly a prisoner in state custody, filed his complaint bringing 19 claims pursuant to 42 U.S.C. § 1983 against seventeen Defendants. Peavy also filed a 20 motion to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(e), and a motion 21 for appointment of counsel. 22 I. IFP Application 23 The Court has reviewed the IFP application, finds that Peavy is without money to pay 24 the filing fee, and GRANTS his motion to proceed IFP. Having done so, the Court is 25 required to screen the complaint and to dismiss it to the extent it is frivolous or malicious, 26 fails to state a claim, or seeks monetary relief from an immune defendant. 27 § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Because Peavy is 28 proceeding pro se, the Court construes his pleadings liberally, see Eldridge v. Block, 832 -1- See 11cv1434 Dockets.Justia.com 1 F.2d 1132, 1137 (9th Cir. 1987), but even a liberal construction does not supply elements 2 Peavy has not pleaded. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 3 II. Mandatory Screening 4 Peavy brings this action against prison officials pursuant to 42 U.S.C. § 1983. To the 5 extent he might be bringing supplemental state law claims, see Ashker v. Calif. Dept. of 6 Corrections, 112 F.3d 392 (9th Cir. 1997) (discussing when supplemental state law claims 7 may be brought against state officials sued in federal court), he has not alleged compliance 8 with the California Tort Claims Act’s exhaustion requirement. Any claim for prospective 9 injunctive relief has become moot, because Peavy is no longer incarcerated. 10 Several of the Defendants were supervisors or were told about alleged violations. A 11 defendant is not liable under § 1983 unless he personally participated in the alleged 12 deprivation of the plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002). 13 Supervisors may be liable, however, if they act in a manner deliberately indifferent to a 14 plaintiff’s rights. Starr v. Baca, 652 F.3d 1202, 1206–07 (9th Cir. 2011). To establish 15 deliberate indifference, the plaintiff must show the official was both “aware of facts from 16 which the inference could be drawn that a substantial risk of [a rights violation] exists, and 17 he must also draw the inference.” Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242 18 (9th Cir. 2010) (quotation omitted). 19 A. Medical Claims 20 Peavy alleges several of the Defendants were involved in some way in denying him 21 medical care. To recover for an Eighth Amendment violation based on withholding of medical 22 care, Peavy must both allege and prove each Defendant from whom he seeks relief were 23 deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 24 (1976). To establish deliberate indifference, the prison official must know of, and disregard, 25 an excessive risk to the patient's health and safety. Toguchi v. Chung, 391 F.3d 1051, 26 1057–1058 (9th Cir. 2004). The prison official must not only be aware of facts from which 27 the inference could be drawn that a substantial risk of serious harm exists, but actually draw 28 the inference. Id. A plaintiff must also show that the deliberate indifference resulted in harm. -2- 11cv1434 1 McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (citing Shapley v. Nevada Board 2 of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam)). 3 The complaint doesn’t allege what the medical condition was, whether it was serious, 4 whether any of the Defendants knew it was serious, whether any of the Defendants knew 5 medical care should have been given instead of withheld or delayed, or what harm (if any) 6 resulted. In some cases, it is clear Defendants didn’t withhold medical care, but merely 7 referred Peavy to another Defendant. The complaint’s paragraphs addressing withholding 8 of medical care are ¶¶ 9 (alleging Defendant Amador refused to let him go to sick call), 21 9 (alleging Defendant Seriano refused to give him a pass to sick call, telling him he had waited 10 too late, and told him instead to get the pass from the sergeant), 23 (alleging Defendant 11 Garcia intercepted him when he was going to ask the sergeant for a sick call pass and told 12 him he was supposed to be attending a substance abuse program class), and 25 (alleging 13 that when Peavy arrived at the substance abuse class and asked Defendant Webb for a 14 pass, Webb told Peavy to ask Amador). 15 Based on the allegations, it appears Defendant Amador, a program assessment 16 technician for the prison substance abuse program, thought Peavy was malingering 17 (Complaint, ¶ 9) and the other Defendants deferred to her decision without exercising their 18 own authority. It also appears Peavy asked for a sick pass at a time he was expected to be 19 at a substance abuse program class, leading some of the Defendants to believe he wasn’t 20 really sick and was instead looking for an excuse to skip class. If they did believe this, even 21 if they were wrong, they were not deliberately indifferent. Peavy has not alleged facts 22 showing they knew he was genuinely seriously ill and in need of immediate medical care. 23 Peavy also alleges Defendants Hawkins and Doe 21 assigned him to work that was 24 dangerous to him to perform because of an unstated medical condition. He alleges a doctor 25 26 27 28 1 The complaint refers to two Defendants as Lt. John Doe, in ¶¶ 16, 17, 34, and 35. The caption lists them separately, and the allegations assign them different roles, so it appears they are two different people. The Doe referred to in ¶¶ 16 and 17 will therefore be designated Doe 1 in this order, and the Doe referred to in ¶¶ 34 and 35 will be referred to as Doe 2 for purposes of convenience. Whether they are the same person or different people makes no difference to the Court’s ruling in this order. -3- 11cv1434 1 had given him a “limited duty” chrono but that these two Defendants ordered him to perform 2 work that conflicted with this chrono, exposing him to “an unreasonable risk of serious 3 damage to my future health.” (See ¶¶ 32–35.) These allegations are insufficient because 4 they don’t say what the chrono said, what the work was, whether either Defendant knew the 5 assigned work conflicted with the doctor’s orders, and what harm resulted. 6 Peavy also makes very generalized allegations against Defendant Dr. Cain. (Compl., 7 ¶¶ 12–13.) All he says of the violation is that on July 28, 2009, he ‘was denied serious 8 medical attention by Doctor Cain. Doctor Cain has denied me before[.] I just don’t have the 9 record yet.” These vague remarks provide no information about what happened or why it 10 constituted an Eighth Amendment Violation. These allegations don’t comply with Fed. R. 11 Civ. P. 8's pleading requirements. 12 B. Rules Violation Proceeding 13 The complaint alleges that Peavy was unjustly found guilty of a rules violation as a 14 result of a conspiracy among several of the Defendants. According to the complaint, 15 because Defendant Amador thought Peavy was malingering (Compl., ¶ 9 (“she told me that 16 I’m always at sick call”)) and in retaliation conspired with Defendants Dark, Almaguer, and 17 Garza to accuse him falsely of a rules violation. (Id.) The accusation was that Peavy 18 showed an expired medical activity card in order to avoid his work assignment, and as a 19 result he was removed from the substance abuse program. (Id.) He also accused Garza, 20 another substance abuse program officer, of falsely testifying that he attempted to use the 21 expired medical activity card to try to pick up medication. (Id., ¶ 11.) 22 Peavy also accuses Defendants Branch (Compl., ¶ 15), Marshall (¶ 3, 17), Doe 1 23 (¶ 17), and Armstrong (¶ 19) of doing nothing to help him after he told them he had falsely 24 been accused. He doesn’t show they knew he was falsely accused, or which of them had 25 authority to do anything about it. 26 Peavy’s claim is in fact an appeal of the rules violation decision; if the decision was 27 correct, he can have no claim. This is not a situation where a prisoner might be bringing a 28 procedural due process claim without attempting to appeal the decision itself; the allegations -4- 11cv1434 1 here are that the only evidence presented at the hearing was perjured and wrongly led to the 2 decision against him. 3 Before appealing a rules violation decision, Peavy was required to exhaust his 4 administrative remedies. See Nichols v. Logan, 355 F. Supp. 2d 1155, 1161–64 (S.D.Cal., 5 2004). There is no exception to this requirement. Wyatt v. Terhune, 315 F.3d 1108, 1120 6 (9th Cir. 2003). The complaint doesn’t allege Peavy did this, and in fact it tends to suggest 7 he didn’t. In particular, paragraph 17 describes his intention to abandon his appeals 8 because “time was running out.” If he did abandon his appeals instead of completing them 9 as required, his claims are barred. 10 C. Armstrong Remedial Plan Violations 11 Peavy accuses Defendants Arbini, Rathwick, and Gillem of failing to comply with the 12 Armstrong Remedial Plan,2 by not assigning him desirable work activities he was entitled to 13 participate in because of an unstated disability. (Compl., ¶¶ 26–31.) A claim that a 14 defendant has violated the Armstrong Remedial Plan does not give rise to a claim for 15 damages under § 1983. Brown v. Calif. Dept. of Corrections, 2010 WL 3835854, slip op. at 16 *2 (E.D.Cal., Sept. 29, 2010). Claims for injunctive relief are now moot because Peavy has 17 been released from custody. Furthermore, any claims for equitable relief must be pursued 18 through counsel for the class. See Ervin v. Calif. Dept. of Corrections & Rehabilitation, 2011 19 WL3503164, slip op. at *2 (E.D.Cal., Aug. 10, 2011) (citing Frost v. Symington, 197 F.3d 20 348, 359 (9th Cir.1999)). 21 III. Motion for Appointment of Counsel 22 Because the complaint is being dismissed, and because it appears Peavy could 23 reasonably articulate any valid claims he may have without the assistance of an attorney, 24 his motion for appointment of counsel is DENIED WITHOUT PREJUDICE. 25 /// 26 2 27 28 The Armstrong Remedial Plan refers to a remedial order issued in Armstrong v. Davis, No. 94cv2307-CW by the U.S. District Court for the Northern District of California. Martin v. Yates, 2010 WL 5330485, slip op. at *1 n.2 (E.D.Cal., Dec. 20, 2010) (citing Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001); Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997)). The order enjoined discrimination against disabled inmates in California prisons. -5- 11cv1434 1 IV. Conclusion and Order 2 For these reasons, the complaint is DISMISSED WITHOUT PREJUDICE. His claims 3 arising from alleged violations of the Armstrong Remedial Plan are DISMISSED WITHOUT 4 PREJUDICE BUT WITHOUT LEAVE TO AMEND. If Peavy wishes to amend his complaint, 5 he must file his amended complaint no later than Wednesday, January 4, 2012. He must 6 not include any claims dismissed without leave to amend. His amended complaint must also 7 remedy all the defects identified in this order. To the extent his amended complaint does 8 not remedy a defect this order has identified, the Court will assume the defect cannot be 9 remedied by amendment. 10 11 If Peavy does not file an amended complaint within the time permitted, this action will be dismissed without leave to amend. 12 The complaint did not list Peavy’s address in the caption, as required under Civil Local 13 Rule 5.1(j)(1). His IFP application gives his prison address as his current address in the 14 caption, and apparently the Clerk used this as his address for docketing purposes. 15 Paragraph 1 of the complaint provides an address in San Diego, however, and the Clerk is 16 directed to replace Peavy’s prison address in the docket with this, his current address. 17 18 IT IS SO ORDERED. 19 DATED: December 7, 2011 20 21 HONORABLE LARRY ALAN BURNS United States District Judge 22 23 24 25 26 27 28 -6- 11cv1434
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