Salas v. San Diego County Jail Medical Staff et al, No. 3:2016cv00064 - Document 6 (S.D. Cal. 2016)
Court Description: ORDER granting 3 , 5 Motions 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 fro m 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). The Cou rt dismisses the plaintiff's Complaint and grants him forty-five days leave from the date of this Order in which to file an Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Cynthia Bashant on 4/4/16. (All non-registered users served via U.S. Mail Service)(form for 42:1983 Complaint also mailed to plaintiff)(kas)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LARRY SALAS, CDCR No. AT-8924 Case No. 3:16-cv-0064-BAS-JMA Plaintiff, 12 13 14 ORDER: v. SAN DIEGO COUNTY JAIL MEDICAL STAFF; R.N. SALGADO, 15 (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND Defendants. 16 (2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM 17 18 Larry Salas (“Plaintiff”), currently incarcerated at the California Rehabilitation 19 20 Center located in Norco, California, and proceeding pro se, has filed a civil rights 21 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1). 22 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 23 he filed his Complaint; instead, he has filed two Motions to Proceed In Forma Pauperis 24 (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. Nos. 3, 5). 25 I. 26 PLAINTIFF’S MOTIONS TO PROCEED IFP All parties instituting any civil action, suit or proceeding in a district court of the 27 28 1 3:16-cv-0064-BAS-JMA 1 United States, except an application for writ of habeas corpus, must pay a filing fee. 28 2 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire 3 fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 5 prisoner and he is granted leave to proceed IFP, he remains obligated to pay the full 6 entire fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 7 regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 8 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 10 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 11 trust fund account statement (or institutional equivalent) for the . . . six-month period 12 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 13 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 14 Court assesses an initial payment of 20% of (a) the average monthly deposits in the 15 account for the past six months, or (b) the average monthly balance in the account for the 16 past six months, whichever is greater, unless the prisoner has no assets. 28 U.S.C. 17 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then 18 collects subsequent payments, assessed at 20% of the preceding month’s income, in any 19 month in which the prisoner’s account exceeds $10, and forwards those payments to the 20 Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 21 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 22 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews, 23 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity which shows 24 he has a current balance of $0.00. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 25 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 26 or criminal judgment for the reason that the prisoner has no assets and no means by 27 28 2 3:16-cv-0064-BAS-JMA 1 which to pay [an] initial partial filing fee”); Taylor, 281 F.3d at 850 (finding that 28 2 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case 3 based solely on a “failure to pay . . . due to the lack of funds available”). Therefore, the 4 Court GRANTS Plaintiff’s Motions to Proceed IFP (Doc. Nos. 3,5) and assesses no 5 initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of 6 the filing fee owed must be collected and forwarded to the Clerk of the Court pursuant to 7 the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 8 II. 9 10 INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) A. Standard of Review Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA 11 also requires the Court to review, “as soon as practicable after docketing,” 28 U.S.C. § 12 1915A(a), complaints filed by all persons proceeding IFP and by those, like Plaintiff, 13 who are “incarcerated or detained in any facility [and] accused of, sentenced for, or 14 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 15 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). Under these 16 statutes, the Court must sua sponte dismiss any complaint, or any portion of a complaint, 17 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 18 who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 19 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 20 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 21 All complaints must contain “a short and plain statement of the claim showing that 22 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 23 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 24 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 25 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 26 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 27 28 3 3:16-cv-0064-BAS-JMA 1 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 2 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 3 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 4 “When there are well-pleaded factual allegations, a court should assume their 5 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 6 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 7 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 8 allegations of material fact and must construe those facts in the light most favorable to 9 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 10 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 11 However, while the court “ha[s] an obligation where the petitioner is pro se, particularly 12 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the 13 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 14 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 15 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 16 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory allegations of official 17 participation in civil rights violations” are simply not “sufficient to withstand a motion to 18 dismiss.” Id. 19 B. 20 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 21 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 22 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 23 substantive rights, but merely provides a method for vindicating federal rights elsewhere 24 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 25 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 26 deprivation of a right secured by the Constitution and laws of the United States, and (2) 27 28 4 3:16-cv-0064-BAS-JMA 1 that the deprivation was committed by a person acting under color of state law.” Tsao v. 2 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 3 C. 4 As an initial matter, the Court finds that to the extent Plaintiff names the entire Improper Defendants & Municipal Liability 5 “San Diego County Jail Medical Staff,” his claims must be dismissed sua sponte pursuant 6 to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim upon which § 7 1983 relief can be granted. 8 Local law enforcement departments, like the San Diego Sheriff’s Department, 9 municipal agencies, or subdivisions of those department or agencies, are not proper 10 defendants under § 1983. See Vance v. County of Santa Clara, 928 F.Supp. 993, 996 11 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an appropriate 12 means of pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. 13 Cook County Jail, 814 F.Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability 14 on any ‘person’ who violates someone’s constitutional rights ‘under color of law.’ Cook 15 County Jail is not a ‘person.’”). 16 While the County of San Diego itself may be considered a “person” and therefore, 17 a proper defendant under § 1983, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 18 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), Plaintiff has 19 not named the County as a Defendant. Moreover, as a municipality, the County may be 20 held liable under § 1983–but only where the Plaintiff alleges facts to show that a 21 constitutional deprivation was caused by the implementation or execution of “a policy 22 statement, ordinance, regulation, or decision officially adopted and promulgated” by the 23 County, or by a “final decision maker” for the County. Monell, 436 U.S. at 690; Bd. of 24 the Cty. Comm’rs v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 25 714 (9th Cir. 1995). In other words, “respondeat superior and vicarious liability are not 26 cognizable theories of recovery against a municipality.” Miranda v. Clark County, 27 28 5 3:16-cv-0064-BAS-JMA 1 Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002). “Instead, a Monell claim exists only 2 where the alleged constitutional deprivation was inflicted in ‘execution of a government’s 3 policy or custom.’” Id. (quoting Monell, 436 U.S. at 694). 4 As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C. 5 §§ 1915(e)(2) and 1915A(b) because he has failed to allege any facts which “might 6 plausibly suggest” that the County itself violated his constitutional rights. See Hernandez 7 v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading 8 standards to Monell claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42 9 U.S.C. § 1983 provides for relief only against those who, through their personal 10 involvement as evidenced by affirmative acts, participation in another’s affirmative acts, 11 or failure to perform legally required duties, cause the deprivation of plaintiff’s 12 constitutionally protected rights). 13 D. 14 Finally, while Plaintiff contends his “civil rights were violated” due to “medical Medical Care Claims 15 negligence,” see Compl. at 2, he fails to identify “sufficient allegations of underlying 16 facts” to show that any individual person named as a Defendant caused a violation of his 17 Eighth or Fourteenth Amendment rights. Hernandez, 666 F.3d at 637; Monell, 436 U.S. 18 at 690; Brown, 520 U.S. at 403; Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). 19 Prison officials are liable only if they are deliberately indifferent to the prisoner’s 20 serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). First, Plaintiff 21 claims he was “kicking heroin, detox stage” see Compl. at 2, but he fails to include any 22 further “factual matter” sufficient to show or describe how or to what extent his medical 23 need was objectively serious. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 24 1991) (defining a “serious medical need” as one which the “failure to treat . . . could 25 result in further significant injury or the ‘unnecessary and wanton infliction of pain’”), 26 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 27 28 6 3:16-cv-0064-BAS-JMA 1 (en banc) (citing Estelle, 429 U.S. at 104); Iqbal, 556 U.S. at 678 (“[A] complaint must 2 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 3 plausible on its face.’”) (quoting Twombly, 550 U.S. at 570). The “existence of an injury 4 that a reasonable doctor or patient would find important and worthy of comment or 5 treatment; the presence of a medical condition that significantly affects an individual’s 6 daily activities; or the existence of chronic and substantial pain are examples of 7 indications that a prisoner has a ‘serious’ need for medical treatment.” McGuckin, 974 8 F.3d at 1059-60. Second, nothing in Plaintiff’s Complaint supports a “reasonable inference that [any 9 10 individual] defendant” acted with deliberate indifference to his plight. Iqbal, 556 U.S. at 11 678. “In order to show deliberate indifference, an inmate must allege sufficient facts to 12 indicate that prison officials acted with a culpable state of mind.” Wilson v. Seiter, 501 13 U.S. 294, 302 (1991). The indifference to medical needs also must be substantial; 14 inadequate treatment due to malpractice, or even gross negligence, does not amount to a 15 constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060 16 (9th Cir. 2004) (“Deliberate indifference is a high legal standard.”) (citing Hallett v. 17 Morgan, 296 F.3d 732, 1204 (9th Cir. 2002)); Wood v. Housewright, 900 F.2d 1332, 18 1334 (9th Cir. 1990). A difference of opinion between a prisoner and his doctors as to the 19 appropriate course or type of medical attention does not amount to deliberate 20 indifference, see Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. 21 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), and delays do not by themselves show 22 deliberate indifference, unless the delay is alleged to be harmful. See McGuckin, 974 F.2d 23 at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 24 1985. 25 Thus, the Court finds that Plaintiff has failed to allege facts to show that any 26 individual official actually knew of, yet disregarded his serious medical needs, see 27 28 7 3:16-cv-0064-BAS-JMA 1 Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1193 (9th Cir. 2002) (“[D]eliberate 2 indifference requires the defendant to be subjectively aware that serious harm is likely to 3 result from a failure to provide medical care.”), nor does it allege that any delay in 4 treatment or testing caused him actual harm. See McGuckin, 974 F.2d at 1060. Without 5 more, Plaintiff’s Complaint amounts only to “unadorned, the defendant[s]-unlawfully- 6 harmed-me accusation[s],” which “stop[] short of the line between possibility and 7 plausibility of ‘entitlement to relief’” as to any purported medical care claim. Iqbal, 556 8 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). 9 For all these reasons, the Court finds that Plaintiff has failed to state a plausible 10 claim for relief against any person subject to suit pursuant to 42 U.S.C. § 1983. Id. 11 Therefore, his Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. 12 §§ 1915(e)(2) and 1915A(b). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 13 III. CONCLUSION & ORDER 14 For the foregoing reasons the Court: 15 1. 16 17 GRANTS Plaintiff’s Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (Doc. Nos. 3, 5). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 18 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 19 monthly payments from his account in an amount equal to twenty percent (20%) of the 20 preceding month’s income and forwarding those payments to the Clerk of the Court each 21 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). All 22 payments shall be clearly identified by the name and number assigned to this action. 23 24 25 26 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DISMISSES Plaintiff’s Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS him forty-five (45) days leave from 27 28 8 3:16-cv-0064-BAS-JMA 1 the date of this Order in which to file an Amended Complaint which cures all the 2 deficiencies of pleading noted. Plaintiff’s Amended Complaint must be complete in itself 3 without reference to his original pleading. Defendants not named and any claims not re- 4 alleged in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 5 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 6 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cty., 693 7 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which 8 are not re-alleged in an amended pleading may be “considered waived if not repled”). 9 5. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a 10 blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. 11 § 1983” for his use in amending. 12 IT IS SO ORDERED. 13 14 DATED: April 4, 2016 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:16-cv-0064-BAS-JMA
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