Trammell v. Spruyt et al

Filing 7

ORDER - (1) Plaintiff's Second Amended Complaint (Doc. 6 ) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. (2) The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a "strike" under 28 U.S.C. § 1915(g). (3) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. (See document for further details). Signed by Judge G Murray Snow on 2/26/14. (LAD)

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WO

MD

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ramone Trammell,

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No. CV 13-1135-PHX-GMS (SPL)
Plaintiff,

vs.

ORDER

Tim Spruyt, et al.,

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Defendants.

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On June 5, 2013, Plaintiff Ramone Trammell, who is confined in the Maricopa

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County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 and an Application to Proceed In Forma Pauperis. In a September 3, 2013 Order,

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the Court granted the Application to Proceed and dismissed the Complaint because

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Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended

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complaint that cured the deficiencies identified in the Order.

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On October 3, 2013, Plaintiff filed his First Amended Complaint. In a November

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26, 2013 Order, the Court dismissed the First Amended Complaint because Plaintiff had

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failed to state a claim. The Court gave Plaintiff 30 days to file a second amended

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complaint that cured the deficiencies identified in the Order.

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On December 27, 2013, Plaintiff filed a Second Amended Complaint (Doc. 6).

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The Court will dismiss the Second Amended Complaint and this action.

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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff

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has raised claims that are legally frivolous or malicious, that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8

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does not demand detailed factual allegations, “it demands more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. “Determining whether a complaint states a plausible

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claim for relief [is] . . . a context-specific task that requires the reviewing court to draw

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on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s

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specific factual allegations may be consistent with a constitutional claim, a court must

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assess whether there are other “more likely explanations” for a defendant’s conduct. Id.

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at 681.

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But as the United States Court of Appeals for the Ninth Circuit has instructed,

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courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less

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stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

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II.

Second Amended Complaint

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A.

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In his Second Amended Complaint, Plaintiff alleges one count of excessive force

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by an officer and one count of denial of constitutionally adequate medical care. He

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names as Defendants Tempe Police Officer Tim Spruyt, Maricopa County Correctional

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Officer Kelly, and Dr. Mullany and Nurse Corbin, who work at the Maricopa County Jail

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for Correctional Health Services. Plaintiff seeks compensatory and punitive damages,

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costs, attorney’s fees, and “such equitable relief as deemed necessary or proper.”

Plaintiff’s Allegations

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Plaintiff alleges the following facts in Count I: Plaintiff was “travelling as a

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passenger in a vehicle for a traffic violation and for use of marijuana.” Plaintiff “decided

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to run, and as he ran from the location of the stop, he was shot in the back by Officer

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Spruyt.” As Plaintiff ran from the scene, he dropped his cell phone, which was the only

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item in his possession aside from cash, a wallet and the clothes he was wearing. Plaintiff

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alleges that Spruyt made no commands to stop and that Spruyt never saw a weapon to

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confirm that Plaintiff was armed. Plaintiff contends that prior to fleeing, the “worst

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charge [he] could have been suspected of was possession of marijuana. Because Spruyt

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could not have confirmed that [Plaintiff] had a weapon and because at the time of the

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incident, the worst crime that could have been imputed to [Plaintiff] was evading arrest,

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the use of Spruyt’s firearm, a deadly weapon for purposes of inflicting deadly force, was

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unreasonable.” Plaintiff alleges that Spruyt could not have mistaken his cell phone for a

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weapon and that Spruyt “would have been able to easily ascertain that it was not a

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weapon that dropped[.]”

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In Count II, Plaintiff asserts that as a result of the gunshot wounds, he required

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surgery and a portion of his bowel was removed, a stoma inserted, and he now needs a

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colostomy bag. Plaintiff alleges that Defendant Corbin has refused to give him items to

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care for the stoma, including hydrogen peroxide, saline to clean the area, cleaning

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materials such as gauze or Q-tips, or a dry dressing for irritation. Plaintiff states that he

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has only received these items on two or three occasions during his incarceration, “even

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though these items are needed multiple times a day.” The inability to care for his stoma

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has caused infections, pain, discomfort and psychological trauma.

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Plaintiff further alleges that Defendant Mullany has refused to reverse the

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colostomy and has told Plaintiff that the procedure is elective. Plaintiff alleges that

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Mullany’s refusal “was deliberately indifferent to [Plaintiff’s] medical needs as [he] had

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made Dr. Mullany aware that the site was getting infected because [Plaintiff] was not

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being given supplies to care for the stoma” and because “infections can lead to organ

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failure and death.”

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Finally, Plaintiff alleges that Defendant Kelly, a transportation officer, “was told

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by [Plaintiff] about the infections and saw the infection first hand, and about Corbin’s

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refusal to get supplies for [Plaintiff].” Plaintiff asserts that Kelly has the authority to send

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Plaintiff to receive services from Plaintiff’s own physicians but “refused to have

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[Plaintiff] transferred to get help.”

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B.

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According to records available online, Plaintiff is being held on criminal charges

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of aggravated assault and misconduct involving weapons in Maricopa County Superior

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Court case, #CR2012-132289, with an offense date of June 7, 2012.1

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III.

Additional Background

Failure to State a Claim

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts supporting

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that (1) the conduct about which he complains was committed by a person acting under

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the color of state law and (2) the conduct deprived him of a federal constitutional or

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statutory right. Wood v. Outlander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a

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plaintiff must allege that he suffered a specific injury as a result of the conduct of a

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particular defendant and he must allege an affirmative link between the injury and the

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conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.
asp (last visited Feb. 21, 2014).
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A.

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Plaintiff designates Count I as a claim for the excessive use of force. A claim that

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police officers used excessive force in the course of an arrest arises under the Fourth

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Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989); Hooper v. County of

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San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011); Bryan v. MacPherson, 630 F.3d 805,

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823-24 (9th Cir. 2010). To state an excessive force claim, a plaintiff must allege facts to

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support that the force used by police officers was objectively unreasonable under the

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circumstances. Graham, 490 U.S. at 395. The pertinent question is whether the use of

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force was “objectively reasonable in light of the facts and circumstances confronting [the

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officers], without regard to their underlying intent or motivation.” Id. at 397. Further, an

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arrestee’s resistance may support the use of force regardless of whether of probable cause

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for an arrest exists. Brooks v. City of Seattle, 599 F.3d 1018, 1022 (9th Cir. 2010). But

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the existence of probable cause may be considered as a part of the totality of the

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circumstances. Id. Other relevant circumstances include the severity of the suspected

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crime at issue, whether the suspect posed an immediate threat to the safety of officers or

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others, and whether the suspect was actively resisting arrest or attempting to evade arrest.

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Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003); see Bryan, 630 F.3d at 823-24.

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As in his prior complaints, Plaintiff fails to allege when the alleged use of

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excessive force by Spruyt occurred. Plaintiff is possibly referring to a use of force by

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Spruyt in the course of his arrest in relation to case #CR2012-132289, where he is

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awaiting trial on charges of aggravated assault and misconduct involving weapons, but

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that is not clear from the Complaint. Moreover, Plaintiff indicates that he was running

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away from Spruyt, apparently after the vehicle in which he was a passenger had been

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stopped, and that Plaintiff had a cell phone in his hand, which Plaintiff suggests the

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officer thought was a gun. Plaintiff does not indicate what time of day these events

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occurred, if the area was dark or well lit, or how far Plaintiff was from the officer when

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he was shot. Plaintiff does not state why he was running from the officer but it appears

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he was evading arrest. Thus, Plaintiff does not allege sufficient facts to suggest that the

Excessive Force

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alleged use of force against him was objectively unreasonable in light of the facts and

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surrounding circumstances. Accordingly, Plaintiff fails to state a claim for excessive

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force by an officer and Count I will be dismissed.

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B.

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In Count II of his Complaint, Plaintiff alleges that he was denied constitutionally

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adequate medical care. Not every claim by a prisoner relating to inadequate medical

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treatment states a violation of the Eighth or Fourteenth Amendment. To state a § 1983

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medical claim, a plaintiff must show that the defendants acted with “deliberate

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indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a

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“serious medical need” by demonstrating that failure to treat the condition could result in

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further significant injury or the unnecessary and wanton infliction of pain and (2) the

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defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations

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omitted).

Medical Care

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must

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both know of and disregard an excessive risk to inmate health; “the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,

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837 (1994).

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purposeful act or failure to respond to a prisoner’s pain or possible medical need and

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harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may

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also be shown when a prison official intentionally denies, delays, or interferes with

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medical treatment or by the way prison doctors respond to the prisoner’s medical needs.

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Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096.

Deliberate indifference in the medical context may be shown by a

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Deliberate indifference is a higher standard than negligence or lack of ordinary

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due care for the prisoner’s safety. Farmer, 511 U.S. at 835. “Neither negligence nor

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gross negligence will constitute deliberate indifference.” Clement v. California Dep’t of

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Corrs., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also Broughton v. Cutter Labs.,

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622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” “negligence,” or

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“medical malpractice” do not support a claim under § 1983). “A difference of opinion

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does not amount to deliberate indifference to [a plaintiff’s] serious medical needs.”

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A mere delay in medical care,

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without more, is insufficient to state a claim against prison officials for deliberate

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indifference. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407

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(9th Cir. 1985). The indifference must be substantial. The action must rise to a level of

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“unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105.

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Plaintiff fails to state a claim for denial of constitutionally adequate medical care.

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Plaintiff states that Defendant Corbin has refused to give him supplies to care for his

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stoma and that he has only been provided supplies by someone two or three times during

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his entire incarceration. First, Plaintiff fails to give any indication as to how long he has

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been incarcerated. Second, Plaintiff fails to provide any dates, or even approximate

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dates, for when he has requested supplies from Corbin and when Corbin allegedly refused

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to provide supplies. Plaintiff fails to state whether he filed any health needs requests,

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grievances, or other complaints about the lack of supplies. Finally, Plaintiff says the

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stoma site has become infected due to the lack of supplies, but he fails to provide any

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information about these infections, their severity, or whether he needed any additional

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treatment for the infections.

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Plaintiff alleges that Defendant Mullany’s refusal to reverse his colostomy was

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deliberately indifferent because Mullany was aware that Plaintiff had suffered infections

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because he was not receiving the supplies he needed. Plaintiff fails to provide any

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information about when he requested a colostomy reversal or how Mullany was aware

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that Plaintiff’s stoma site was infected or that he was not receiving the supplies he

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needed. Plaintiff does not state whether he was ever examined by Mullany or requested

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that Mullany examine him. Plaintiff does not allege that he filed any health needs

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requests, grievances, or other complaints about the need for a colostomy reversal,

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infections, or lack of supplies. Thus, Plaintiff fails to provide facts to support that

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colostomy reversal in his case amounts to a “serious medical need” or that Mullany’s

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response that colostomy reversal is elective was deliberately indifferent.

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Finally, Plaintiff’s vague allegation that Defendant Kelly’s refusal to have Plaintiff

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“transferred to get help,” even though Kelly saw Plaintiff’s infection and Plaintiff told

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Kelly he was not getting supplies from Corbin, fails to state a claim of deliberate

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indifference to a serious medical need. Plaintiff does not state when he told Kelly about

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the problems he had getting supplies or the infections, and he does not say he ever asked

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Kelly for his assistance in getting supplies or being transferred. He states that Kelly has

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the authority to send Plaintiff to receive services from Plaintiff’s own physicians but he

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fails to state how a transportation officer has the authority to make a medical

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determination to send an inmate to an off-site doctor. Although pro se pleadings are

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liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and

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vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of

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Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil

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rights complaint may not supply essential elements of the claim that were not initially

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pled. Id.

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Accordingly, Count II will be dismissed.
IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given

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if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express,

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Inc., 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996).

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Repeated failure to cure deficiencies is one of the factors to be considered in deciding

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whether justice requires granting leave to amend. Moore, 885 F.2d at 538.

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Plaintiff has made three efforts at crafting a viable complaint and appears unable

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to do so despite specific instructions from the Court. The Court finds that further

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opportunities to amend would be futile. Therefore, the Court, in its discretion, will

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dismiss Plaintiff’s Second Amended Complaint without leave to amend.

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IT IS ORDERED:

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(1)

Plaintiff’s Second Amended Complaint (Doc. 6) and this action are

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dismissed for failure to state a claim, and the Clerk of Court must enter judgment

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accordingly.

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(2)

The Clerk of Court must make an entry on the docket stating that the

dismissal for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(3)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of

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this decision would not be taken in good faith.

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Dated this 26th day of February, 2014.

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