Simril v. Paramo, et al., No. 3:2013cv01220 - Document 11 (S.D. Cal. 2013)
Court Description: ORDER granting Plaintiff's 5 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 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). Pla's Complaint is dismissed w/o prejudice pursuant to 28 USC 1915(e)(2)(b) and 1915A(b). Pla is granted 45 days leave from the date of this Order is filed to file a First Amended Complaint. If Pla's First Amended Complaint fails to st ate a claim upon which relief may be granted, it may be dismissed w/o further leave to amend and may be counted as a strike under 28 USC 1915(g). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Gonzalo P. Curiel on 7/24/2013. (Copy of this Order mailed to Jeffrey Beard, Ph.D). (Blank First Amended 1983 Complaint form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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Simril v. Paramo, et al. Doc. 11 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ANTHONY SIMRIL, CDCR #AE-9592, Civil No. Plaintiff, 13 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350.00 BALANCE FROM PRISONER’S TRUST ACCOUNT [ECF No. 5]; and 14 15 vs. 16 17 18 (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) DANIEL PARAMO, Warden; M. GLYNN, Chief Medical Executive Officer, 19 20 13cv1220 GPC (PCL) Defendants. 21 22 23 Anthony Simril (“Plaintiff”), a state prisoner currently incarcerated at the Richard J. 24 Donovan Correctional Facility (“RJD”) located in San Diego, California and proceeding pro se, 25 initially submitted a civil action pursuant to 42 U.S.C. § 1983 in the Northern District of 26 California. [ECF No. 1.] Additionally, Plaintiff filed a Motion to Proceed In Forma Pauperis 27 (“IFP”) pursuant to 28 U.S.C. § 1915(a). [ECF No. 5.] On May 20, 2013, United States District 28 Judge Charles R. Breyer determined that the claims giving rise to Plaintiff’s action occurred I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 1 13cv1220 GPC (PCL) Dockets.Justia.com 1 while he was housed at RJD and transferred the matter to the Southern District of California. 2 [ECF No. 6.] 3 I. 4 MOTION TO PROCEED IFP [ECF No. 5] 5 All parties instituting any civil action, suit or proceeding in a district court of the United 6 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 7 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 8 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 9 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to 10 proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their 11 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 12 844, 847 (9th Cir. 2002). 13 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 14 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 15 statement (or institutional equivalent) for the prisoner for the six-month period immediately 16 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 17 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 18 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 19 (b) the average monthly balance in the account for the past six months, whichever is greater, 20 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 21 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 22 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 23 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 24 § 1915(b)(2). 25 The Court finds that Plaintiff has no available funds from which to pay filing fees at this 26 time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 27 from bringing a civil action or appealing a civil action or criminal judgment for the reason that 28 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 2 13cv1220 GPC (PCL) 1 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 2 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 3 available to him when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion 4 to Proceed IFP [ECF No. 5] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). 5 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded 6 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 7 § 1915(b)(1). 8 II. 9 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1) 10 Notwithstanding IFP status or the payment of any partial filing fees, the Court must 11 subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening 12 and order the sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a 13 claim upon which relief may be granted, or seeking monetary relief from a defendant immune 14 from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 15 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 16 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not 17 only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that 18 fails to state a claim). 19 Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte 20 dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as 21 amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to 22 the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing 23 the U.S. Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at 24 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 25 1997) (stating that sua sponte screening pursuant to § 1915 should occur “before service of 26 process is made on the opposing parties”). 27 “[W]hen determining whether a complaint states a claim, a court must accept as true all 28 allegations of material fact and must construe those facts in the light most favorable to the I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 3 13cv1220 GPC (PCL) 1 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 2 (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); 3 Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s 4 pleadings, see Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), 5 which is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 6 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the 7 court may not “supply essential elements of claims that were not initially pled.” Ivey v. Board 8 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 9 A. 1983 standard 10 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 11 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 12 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 13 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 14 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 15 B. Eighth Amendment claims 16 Plaintiff’s Complaint is nearly devoid of any specific factual allegations. For example, 17 Plaintiff claims in his Complaint that “since 4/23/13 RJDCF has denied prisoners 7 days without 18 power/water/medical supplies or alternatives.” [ECF No. 4 at 10.] However, Plaintiff signed this 19 Complaint only two days later so it is not clear what time frame he is referring to and whether 20 this was a total denial of power, water and medical supplies. The Eighth Amendment, which 21 prohibits “cruel and unusual punishments,” imposes a duty on prison officials to provide humane 22 conditions of confinement and to take reasonable measures to guarantee the safety of the 23 inmates. Helling v. McKinney, 509 U.S. 25, 31-33 (1993). However, every injury suffered by 24 an inmate does not necessarily translate into constitutional liability for prison officials. 25 Osolinski v. Kane, 92 F.3d 934, 936-37 (9th Cir. 1996); Rhodes v. Chapman, 452 U.S. 337, 349 26 (1981) (noting that the U.S. Constitution “does not mandate comfortable prisons.”). 27 Thus, to assert an Eighth Amendment claim for deprivation of humane conditions of 28 confinement a prisoner must satisfy two requirements: one objective and one subjective. I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 4 13cv1220 GPC (PCL) 1 Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 2 1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that 3 “a prison official’s acts or omissions . . . result[ed] in the denial of the ‘minimal civilized 4 measure of life’s necessities.’” Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347). 5 This objective component is satisfied so long as the institution “furnishes sentenced prisoners 6 with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” Hoptowit 7 v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Farmer, 511 U.S. at 534; Wright v. Rushen, 642 8 F.2d 1129, 1132-33 (9th Cir. 1981). The subjective requirement, relating to the defendant’s state 9 of mind, requires that the plaintiff allege facts sufficient to show “deliberate indifference.” 10 Allen, 48 F.3d at 1087. “Deliberate indifference” exists when a prison official “knows of and 11 disregards an excessive risk to inmate health and safety; the official must be both aware of facts 12 from which the inference could be drawn that a substantial risk of serious harm exists, and he 13 must also draw the inference.” Farmer, 511 U.S. at 837. 14 As currently pleaded, the Court finds that Plaintiff has failed to allege sufficient facts 15 from which the Court could find that he has stated a claim to show that the conditions of 16 confinement were objectively and demonstrably unsafe, and further fails to allege facts which 17 show that any of the named Defendants were actually aware and consciously disregarded the risk 18 posed. See Helling, 509 U.S. at 36 (exposure to demonstrably unsafe conditions may violate the 19 Eighth Amendment if the inmate can show that the risk he faced was “so grave that it violates 20 contemporary standards of decency”); Farmer, 511 U.S. at 828-29 (deliberate indifference 21 requires a showing that specific prison officials were “subjectively aware of the risk”). 22 23 Accordingly, Plaintiff’s Eighth Amendment claims are dismissed for failing to state a claim upon which § 1983 relief can be granted. 24 While Plaintiff’s Complaint lacks sufficient factual allegations, in the letter to the Court 25 filed on April 19, 2013, he alleged that he was having “problems with the medical Department 26 giving me adequate supplies for dressings, catheter and colostomy supplies.” [ECF No. 1.] 27 Where an inmate’s claim is one of inadequate medical care, the inmate must allege “acts or 28 omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 5 13cv1220 GPC (PCL) 1 Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements: “the seriousness 2 of the prisoner’s medical need and the nature of the defendant’s response to that need.” 3 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX 4 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A medical need is serious “if the 5 failure to treat the prisoner’s condition could result in further significant injury or the 6 ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 7 U.S. at 104). Indications of a serious medical need include “the presence of a medical condition 8 that significantly affects an individual’s daily activities.” Id. at 1059-60. By establishing the 9 existence of a serious medical need, an inmate satisfies the objective requirement for proving 10 an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 11 In general, deliberate indifference may be shown when prison officials deny, delay, or 12 intentionally interfere with a prescribed course of medical treatment, or it may be shown by the 13 way in which prison medical officials provide necessary care. Hutchinson v. United States, 838 14 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a inmate’s civil rights have been 15 abridged with regard to medical care, however, “the indifference to his medical needs must be 16 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 17 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 18 Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 19 Here, Plaintiff’s Complaint contains no factual allegations from which any of the named 20 Defendants could be found to be deliberately indifferent to his serious medical needs. Thus, 21 Plaintiff’s Eighth Amendment inadequate medical care claims are dismissed for failing to state 22 a claim upon which relief can be granted. 23 C. Respondeat Superior claims 24 In addition, to the extent Plaintiff seeks to sue Defendants based merely on their 25 supervisory positions, such allegations are insufficient to state a claim against these Defendants 26 because there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 27 9 F.3d 1433, 1437-38 (9th Cir. 1993). 28 individualized and focus on the duties and responsibilities of each individual defendant whose I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 Instead, “[t]he inquiry into causation must be 6 13cv1220 GPC (PCL) 1 acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 2 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order 3 to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual 4 Defendant which have a direct causal connection to the constitutional violation at issue. See 5 Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th 6 Cir. 1989). 7 Supervisory prison officials may only be held liable for the allegedly unconstitutional 8 violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what 9 extent they personally participated in or directed a subordinate’s actions, and (2) in either acting 10 or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff’s 11 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, 12 however, Plaintiff’s Complaint fails to set forth facts which might be liberally construed to 13 support an individualized constitutional claim against any of the named Defendants. 14 III. 15 CONCLUSION AND ORDER 16 Good cause appearing, IT IS HEREBY ORDERED that: 17 1. 18 is GRANTED. 19 2. Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 5] The Secretary of California Department of Corrections and Rehabilitation, or his 20 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 21 owed in this case by collecting monthly payments from the account in an amount equal to twenty 22 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 23 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 24 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 25 ASSIGNED TO THIS ACTION. 26 3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey Beard, 27 Ph.D., Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 28 502, Sacramento, California 95814. I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 7 13cv1220 GPC (PCL) 1 IT IS FURTHER ORDERED that: 2 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 3 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 4 from the date this Order is “Filed” in which to file a First Amended Complaint which cures all 5 the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in 6 itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants 7 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been 8 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended 9 Complaint fails to state a claim upon which relief may be granted, it may be dismissed without 10 further leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). 11 See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 12 5. 13 Plaintiff. 14 15 The Clerk of Court is directed to mail a court approved §1983 complaint form to IT IS SO ORDERED. DATED: July 24, 2013 16 HON. GONZALO P. CURIEL United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Curiel\Civil - Even\13-1220\13CV1220-GPC-PCL_ord_grant_IFP.wpd, 72413 8 13cv1220 GPC (PCL)
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