Gerald Carter v. Richard Ives et al

Filing 28

ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Amended Complaint, 27 . (SEE ORDER FOR DETAILS) (Attachments: # 1 Notice of Dismissal Form, # 2 CIVIL RIGHTS COMPLAINT FORM) (dts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GERALD CARTER,
Plaintiff,

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v.

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Case No. EDCV 16-1430-JGB (KK)
ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH
LEAVE TO AMEND

RICHARD IVES, ET AL.,

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Defendants.

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I.

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INTRODUCTION
Plaintiff Gerald Carter (“Plaintiff”) filed a pro se Second Amended

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Complaint (“SAC”) pursuant to Bivens v. Six Unknown Named Agents of the

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Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)

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against defendants Richard Ives, P.A. Wolverton, Dr. Allen, Mr. Simpson, Juan D.

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Castillo, and Ian Connors (“Defendants”) in their individual and official capacities

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for deliberate indifference to his serious medical needs in violation of the Eighth

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Amendment. As discussed below, the Court dismisses the SAC with leave to

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amend.

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II.

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PROCEDURAL HISTORY
On June 20, 2016, Plaintiff, an inmate in the custody of the Federal Bureau

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of Prisons (“BOP”) at United States Penitentiary Victorville (“USP Victorville”),

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constructively filed1 a Complaint alleging Defendants violated his Eighth

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Amendment right by failing to treat him for Human Immunodeficiency Virus

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(“HIV”). ECF Docket No. (“Dkt.”) 1, Compl. Though Plaintiff expressed his

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personal belief he was HIV positive, it was unclear from the Complaint whether

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Plaintiff had actually been diagnosed and whether prison officials knew about the

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alleged diagnosis. Id. Thus, on September 29, 2016, the Court dismissed

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Plaintiff’s original Complaint with leave to amend for failure to state a claim. Dkt.

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14, Order.
On October 13, 2016, Plaintiff constructively filed a First Amended

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Complaint (“FAC”) against Defendants in both their official and individual

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capacities. Dkt. 15, FAC at 3-4. In the FAC, Plaintiff alleged Defendants failed to

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provide him with appropriate treatment for his alleged HIV and fungal diagnosis in

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violation of the Eighth Amendment. Id. at 3-6. Plaintiff, however, appeared to

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concede he had never been diagnosed as HIV positive. See id. at 10, 11, 13, 15-17,

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25. In fact, Plaintiff conceded Defendants had administered an HIV test, and the

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results were negative. See id. Thus, on November 9, 2016, the Court again

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dismissed Plaintiff’s FAC with leave to amend for failure to state a claim and

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granted Plaintiff until November 30, 2016 to file a SAC. Dkt. 16, Order.
On November 29, 2016, Plaintiff filed a request for an extension of time to

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file a SAC. Dkt. 17, Request. On December 7, 2016, the Court granted Plaintiff’s

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request, allowing Plaintiff until January 10, 2017 to file a SAC. Dkt. 18, Order.

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Under the “mailbox rule,” when a pro se prisoner gives prison authorities a
pleading to mail to court, the court deems the pleading constructively “filed” on
the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010).
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On January 25, 2017, the Court issued a Report and Recommendation

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(“Report”) that the matter be dismissed for failure to prosecute and to comply

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with court orders. Dkt. 19. On February 6, 2017, Plaintiff filed Objections to the

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Report claiming he mailed a SAC on January 6, 2017. Dkt. 21. Hence, on February

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24, 2017, the Court vacated its Report and ordered Plaintiff file a SAC no later than

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March 24, 2017. Dkt. 22.
On March 23, 2017, the Court received a request for an extension of time to

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file a SAC from Plaintiff. Dkt. 23. The Court granted Plaintiff’s request and

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ordered the SAC filed by April 27, 2017. Dkt. 24. On May 3, 2017, the Court

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issued a Report and Recommendation that the matter be dismissed for failure to

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prosecute and to comply with court orders.2 Dkt. 25.
On April 25, 2017, Plaintiff constructively filed the instant SAC.

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III.

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ALLEGATIONS IN THE SAC

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In the SAC, Plaintiff alleges Defendants have failed to treat him for his

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“serious medical issue.” Dkt. 27, SAC at 5. Plaintiff alleges he “knows his health

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is getting worse[] as time goes on;” yet, he is not receiving any treatment. Id.

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Plaintiff additionally claims he cannot “hold [] food [i]n his stomach,” and he must

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“use the restroom [during] every meal.” Id. Plaintiff alleges Defendants are

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“aware of the serious medical issue” and that he “spoke to medical about these

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serious medical issue[s], [but] they refuse to treat the ailment.” Id. Plaintiff claims

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“Defend[]ants can not argue they did not know about the complaints that [he]

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made to the medical department and to them.” Dkt. 27-2 at 1.

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As a result of his injuries, Plaintiff is seeking “declaratory, monetary, [and]

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punitive damages” for “a total of $1,000,000.00”; and injunctive relief to obtain

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from an outside health care giver an independent test for HIV.” Dkt. 27 at 6.

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As Plaintiff has filed a SAC, the Court will vacate the May 3, 2017 Report and
Recommendation.
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Plaintiff requests the Court grant his “civil rights complaint facts about [his] HIV-

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AIDS that is pending in [] this honorable court.” Dkt. 27-1 at 1.

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IV.

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STANDARD OF REVIEW

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As Plaintiff is proceeding in forma pauperis, the Court must screen the SAC

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and is required to dismiss the case at any time if it concludes the action is frivolous

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or malicious, fails to state a claim on which relief may be granted, or seeks

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monetary relief against a defendant who is immune from such relief. 28 U.S.C. §

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1915(e)(2)(B); 28 U.S.C. § 1915A(b); see Barren v. Harrington, 152 F.3d 1193, 1194

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(9th Cir. 1998).

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In determining whether a complaint fails to state a claim for screening

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purposes, the Court applies the same pleading standard from Rule 8 of the Federal

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Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to

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dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter,

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668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a

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“short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2).

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A complaint may be dismissed for failure to state a claim “where there is no

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cognizable legal theory or an absence of sufficient facts alleged to support a

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cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007)

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(citation omitted). In considering whether a complaint states a claim, a court must

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accept as true all of the material factual allegations in it. Hamilton v. Brown, 630

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F.3d 889, 892-93 (9th Cir. 2011). However, the court need not accept as true

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“allegations that are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th

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Cir. 2008) (citation omitted). Although a complaint need not include detailed

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factual allegations, it “must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Cook v. Brewer, 637 F.3d
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1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

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1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it “allows the

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court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Cook, 637 F.3d at 1004 (citation omitted).
“A document filed pro se is to be liberally construed, and a pro se complaint,

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however inartfully pleaded, must be held to less stringent standards than formal

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pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.

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2008) (citation omitted). “[W]e have an obligation where the p[laintiff] is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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p[laintiff] the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

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2012) (citation omitted).
If the court finds the complaint should be dismissed for failure to state a

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claim, the court has discretion to dismiss with or without leave to amend. Lopez v.

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Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted

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if it appears possible the defects in the complaint could be corrected, especially if

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the plaintiffs are pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103,

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1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint

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cannot be cured by amendment, the court may dismiss without leave to amend.

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Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th

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Cir. 2009).

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V.

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DISCUSSION

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PLAINTIFF FAILS TO STATE AN OFFICIAL CAPACITY CLAIM

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AGAINST ANY DEFENDANT

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(1)

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To bring a Bivens action against Defendants in their official capacity as

APPLICABLE LAW

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medical staff and/or officials at USP Victorville, Plaintiff must present facts

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demonstrating Defendants “committed the alleged constitutional violation
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pursuant to a formal governmental policy or a ‘longstanding practice or custom

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which constitutes the standard operating procedure’” of the governmental entity.

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Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (quoting Jett v. Dallas

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Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989));

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S. Ct.

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2018, 56 L. Ed. 2d 611 (1978); Ting v. United States, 927 F.2d 1504, 1511 (9th Cir.

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1991) (following the general trend of incorporating section 1983 law into Bivens

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suits). Bivens claims brought against government actors in their official capacity

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cannot be based on a theory of respondeat superior liability. See Iqbal, 556 U.S. at

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676. Thus, Plaintiff must provide facts that allege more than Defendants’ personal

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involvement; and instead, Plaintiff must present facts of a government policy,

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practice, or custom which is: “(1) the cause in fact and (2) the proximate cause of

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the constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996);

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Gillette, 979 F.2d at 1346.

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(2)

ANALYSIS

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Here, Plaintiff’s claims against Defendants in their official capacity fail

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because Plaintiff does not identify a policy, practice, or custom that was “(1) the

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cause in fact and (2) the proximate cause of the constitutional deprivation.” See

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Trevino, 99 F.3d at 918. Thus, absent specific allegations identifying a policy,

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practice, or custom that caused Defendants to be deliberately indifferent to a

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serious medical need, Plaintiff fails to state a claim against any Defendant in their

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official capacity.

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B.

PLAINTIFF FAILS TO ALLEGE AN EIGHTH AMENDMENT

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DELIBERATE INDIFFERENCE CLAIM AGAINST ANY

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DEFENDANT

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(1)

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Prison officials or private physicians under contract to treat inmates “violate

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APPLICABLE LAW

the Eighth Amendment if they are ‘deliberately indifferent to a prisoner’s serious
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medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (quoting

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Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)

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(alterations omitted)); Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 128

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L. Ed. 2d 811 (1994). To assert a deliberate indifference claim, a prisoner plaintiff

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must show the defendant: (1) deprived him of an objectively serious medical need,

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and (2) acted with a subjectively culpable state of mind. Wilson v. Seiter, 501 U.S.

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294, 297, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991).
“A medical need is serious if failure to treat it will result in ‘significant injury

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or the unnecessary and wanton infliction of pain.’” Peralta, 744 F.3d at 1081

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(quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). “A prison official is

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deliberately indifferent to [a serious medical] need if he ‘knows of and disregards

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an excessive risk to inmate health.’” Id. at 1082 (quoting Farmer, 511 U.S. at 837).

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The “official must both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and he must also draw the inference.”

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Farmer, 511 U.S. at 837.

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Deliberate indifference “requires more than ordinary lack of due care.”

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Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Farmer, 511

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U.S. at 835). “Deliberate indifference ‘may appear when prison officials deny,

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delay, or intentionally interfere with medical treatment, or it may be shown by the

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way in which prison physicians provide medical care.’” Id. (quoting Hutchinson v.

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United States, 838 F.2d 390, 394 (9th Cir. 1988)). In either case, however, the

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indifference to the inmate’s medical needs must be substantial – negligence,

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inadvertence, or differences in medical judgment or opinion do not rise to the level

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of a constitutional violation. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.

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2004) (negligence constituting medical malpractice is not sufficient to establish an

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Eighth Amendment violation).

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(2)

ANALYSIS

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Here, Plaintiff fails to state an Eighth Amendment deliberate indifference

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claim based on Defendants’ alleged failure to treat Plaintiff for his serious medical

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issues related to his inability to “hold [] food [i]n his stomach.” SAC at 5. In the

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instant SAC, Plaintiff relies on vague, conclusory allegations that Defendants are

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aware of his “serious medical issue”; yet, they “refuse to treat the ailment,”

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“never . . . check on the issue,” and “d[o] not look at this issue as serious.” Id. at

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3-5. However, Plaintiff does not provide any facts identifying when or who he

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specifically told about his serious medical issue, what details he provided regarding

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his symptoms, and what actions Defendants did or did not take. Absent specific

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facts to show Defendants knew Plaintiff was unable to keep food in his stomach,

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and yet continued to deny him medical care, Plaintiff’s deliberate indifference

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claim fails. See Peralta, 744 F.3d at 1082; Iqbal, 556 U.S. at 679 (holding Plaintiffs

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must provide facts to “permit the court to infer more than the mere possibility of

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misconduct”).

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VI.

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LEAVE TO FILE A THIRD AMENDED COMPLAINT

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For the foregoing reasons, the SAC is subject to dismissal. As the Court is

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unable to determine whether amendment would be futile, leave to amend is

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granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam).

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Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the
service date of this Order, Plaintiff choose one of the following two options:
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Plaintiff may file a Third Amended Complaint to attempt to cure the

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deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a

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blank Central District civil rights complaint form to use for filing the Third

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Amended Complaint, which the Court encourages Plaintiff to use.

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If Plaintiff chooses to file a Third Amended Complaint, Plaintiff must clearly

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designate on the face of the document that it is the “Third Amended Complaint,”

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it must bear the docket number assigned to this case, and it must be retyped or

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rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not

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include new defendants or new allegations that are not reasonably related to the

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claims asserted in the SAC. In addition, the Third Amended Complaint must be

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complete without reference to the SAC or any other pleading, attachment, or

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document.

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An amended complaint supersedes the preceding complaint. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will

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treat all preceding complaints as nonexistent. Id. Because the Court grants

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Plaintiff leave to amend as to all his claims raised here, any claim raised in a

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preceding complaint is waived if it is not raised again in the Third Amended

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Complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012).

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Alternatively, Plaintiff may voluntarily dismiss the action without

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prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court

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is directed to mail Plaintiffs a blank Notice of Dismissal Form, which the

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Court encourages Plaintiffs to use.

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The Court advises Plaintiff that it generally will not be well-disposed toward

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another dismissal with leave to amend if Plaintiff files a Third Amended Complaint

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that continues to include claims on which relief cannot be granted. “[A] district

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court’s discretion over amendments is especially broad ‘where the court has

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already given a plaintiff one or more opportunities to amend his complaint.’”

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Ismail v. County of Orange, 917 F. Supp.2d 1060, 1066 (C.D. Cal. 2012) (citations

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omitted); see also Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a Third

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Amended Complaint with claims on which relief cannot be granted, the Third

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Amended Complaint will be dismissed without leave to amend and with

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prejudice.
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Plaintiff is explicitly cautioned that failure to timely file a Third

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Amended Complaint will result in this action being dismissed with prejudice

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for failure to state a claim, prosecute and/or obey Court orders pursuant to

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Federal Rule of Civil Procedure 41(b).

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Dated: May 30, 2017
HONORABLE KENLY KIYA KATO
United States Magistrate Judge

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