Shane Matthew Mulvihill v. Dean Borders

Filing 9

SECOND ORDER TO SHOW CAUSE RE LACK OF PROSECUTION by Magistrate Judge Alka Sagar. To date, Plaintiff has failed to file a First Amended Complaint, or respond to the Court's Order to Show Cause. The Court will provide Plaintiff additional time - to October 10, 2017 - to file a First Amended Complaint or a declaration stating why he is unable to do so. (See Minute Order for complete details) (Attachments: # 1 Order Dismissing Complaint with Leave to Amend (Docket Entry No. 7), # 2 Order to Show Cause re: Lack of Prosecution (Docket Entry No. 8), # 3 Civil Rights Complaint (Blank), # 4 Notice of Dismissal (Blank)) (afe)

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8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

SHANE MATTHEW MULVIHILL,

12

) No. CV17-00079-MWF (AS)
)
) ORDER DISMISSING COMPLAINT WITH
)
) LEAVE TO AMEND
)
)
)
)
)

Plaintiff,
v.

13
14

DEAN BORDERS,
Defendant.

15
16
17

I.

18

INTRODUCTION

19
20

On

December

23,

2016,

Plaintiff

Shane

Matthew

Mulvihill

21

(“Plaintiff”), a prisoner at California Institution for Men (“CIM”)

22

in Chino, California, filed a Complaint pursuant to 42 U.S.C. § 1983.

23

(Docket Entry No. 1).

24

CIM as the sole defendant (“Defendant”).

25

at 1).

The Complaint names Dean Borders, Warden of
(See Complaint (“Compl.”)

26
27
28

Plaintiff alleges that, under § 1983 and California Code of
Regulations

(“CCR”),

Title

15

§
1

3350(a),

Defendant

violated

1

Plaintiff’s

2

punishment by acting deliberately indifferent to Plaintiff’s serious

3

medical needs.

Eighth

Amendment

right

against

cruel

and

unusual

(Compl. at 2-5).

4

The Court has screened the Complaint as prescribed by 28 U.S.C.

5
6

§ 1915A and 42 U.S.C. § 1997e.

For reasons discussed below, the

7

Court DISMISSES the COMPLAINT WITH LEAVE TO AMEND.1

8
9

II.

10

ALLEGATIONS OF THE COMPLAINT

11

Plaintiff alleges that he was denied necessary medical treatment

12
13

while housed at CIM.

(Compl. at 2-5).

On June 25, 2016, Plaintiff

14

filed a request for pain medication to treat “two herniated disks,

15

[a] pinched nerve, arthritis, and degenerative disk disease.”

16

at 2).

17

“fallen

18

“getting worse.”

19

Ibuprofen to be taken three times a day, but Plaintiff also alleges

20

that “no new medical attention [was] rendered . . . ” (id.).

(Id.

Plaintiff allegedly explained to Dr. W. Aqil D.O. that he had
twice

since

arriving

(Id.).

at

[CIM],”

and

his

back

pain

was

Plaintiff was prescribed 400 milligrams of

21
22

On July 14, 2016, Plaintiff filed a request, stating that “his

23

back pain [was] getting worse and travelling to other parts of his

24

body.”

(Id.).

25

2016,

Plaintiff

No new medical attention was rendered.
filed

a

complaint,

stating

that

he

On July 27,
was

“refused

26
1

27
28

Magistrate Judges may dismiss a complaint with leave to amend
without approval from the district judge.
McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
2

1

proper

2

requested a MRI and an appointment with a specialist “to diagnose the

3

severity of the problem.”

4

and denied because of “lack of medical history from both private

5

hospitals and county jail.”

6

saw Dr. Aqil and described “the ongoing medical problems he was

7

having in regard to pain, movement, and mobility.”

8

September 11, 2016, Plaintiff filed a “second level appeal,” which

9

was

medical

allegedly

treatment/procedures

denied

on

(Id.).

for

his

back

condition”

and

Plaintiff’s complaint was reviewed

(Id.).

October

On August 25, 2016, Plaintiff

7,

2016,

(Id. at 3).

because

there

On

was

“no

10

supporting documents to justify further treatment.”

11

Plaintiff

12

located at the county jail that he was transferred from, but his

13

request “was still denied.”

allegedly

informed

CIM

that

his

(Id. at 4).

medical

records

were

(Id.).

14
15

On August 17, 2016, Plaintiff filed an appeal, stating that “he

16

[was] in need of being allowed to use a bowl during chow, due to

17

having Gastric Bypass surgery and [could] only consume small meal[s]

18

throughout the day.”

19

notice that his appeal was “canceled” and was “advised to submit a

20

Health Care appeal form,” which he filed.

21

denied because such a request was not a “healthcare services issue

22

over

23

jurisdiction.”

24

the denial, and Dr. Aqil did not update Plaintiff’s “Chrono” to state

25

that Plaintiff needed to use a bowl during meal services.

which

(Id.).

California
(Id.).

On August 30, 2016, Plaintiff received

Correctional

(Id.).

Health

Care

The appeal was

Services

ha[d]

Plaintiff allegedly informed Dr. Aqil about

(Id.).

26
27
28

Plaintiff requests declaratory and injunctive relief in order to
“receive

proper

medical

care”

and
3

see

a

specialist;

$25,000

in

1

monetary

damages;

2

corpus.”

(Id. at 9).

and

for

the

Court

to

“issue

a

writ

of

habeas

3
4

III.

5

STANDARD OF REVIEW

6
7

Congress mandates that district courts initially screen civil

8

complaints filed by prisoners seeking redress from a governmental

9

entity or employee.

28 U.S.C. § 1915A.

A court may dismiss such a

10

complaint, or any portion thereof, before service of process, if the

11

court concludes that the complaint (1) is frivolous or malicious;

12

(2) fails to state a claim upon which relief may be granted; or

13

(3) seeks monetary relief from a defendant who is immune from such

14

relief.

15

203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) (en banc).

28

U.S.C.

§

1915A(b)(1)–(2);

see

also

Lopez

v.

Smith,

16
17

Dismissal for failure to state a claim is appropriate if a

18

complaint fails to proffer “enough facts to state a claim for relief

19

that

20

550

21

(2009).

“A claim has facial plausibility when the plaintiff pleads

22

factual

content

23

inference that the defendant is liable for the misconduct alleged.”

24

Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr.

25

& Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

26

provide more than “labels and conclusions” or a “formulaic recitation

27

of the elements” of his claim.

28

556 U.S. at 678.

is
U.S.

plausible
544,

570

on

its

(2007);

that

face.”

Bell

Ashcroft

v.

allows

the

court

Atl.

Iqbal,

to

Corp.
556

draw

v.

U.S.

the

Twombly,
662,

678

reasonable

A plaintiff must

Twombly, 550 U.S. at 555; Iqbal,

However, “[s]pecific facts are not necessary; the
4

1

[complaint] need only ‘give the defendant fair notice of what the

2

. . . claim is and the grounds upon which it rests.’”

3

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550

4

U.S. at 555).

Erickson v.

5

In

6

considering

whether

to

dismiss

a

complaint,

a

court

is

7

generally limited to the pleadings and must construe all “factual

8

allegations set forth in the complaint . . . as true and . . . in the

9

light

most

favorable”

to

the

plaintiff.

Lee

v.

City

of

L.A.,

10

250 F.3d 668, 679 (9th Cir. 2001).

11

“to be liberally construed” and held to a less stringent standard

12

than those drafted by a lawyer.

13

Hebbe

14

incorporated the Twombly pleading standard and Twombly did not alter

15

courts’ treatment of pro se filings; accordingly, we continue to

16

construe

17

Iqbal.”).

18

be warranted based on either the lack of a cognizable legal theory or

19

the

20

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.

21

2008).

22

claim

23

necessarily defeat the claim.

24

1228–29 (9th Cir. 1984).

25

\\

26

\\

27

\\

28

\\

v.

Pliler,

pro

se

627

F.3d

filings

Moreover, pro se pleadings are

Erickson, 551 U.S. at 94; see also

338,

342

liberally

(9th

when

Cir.

2010)

evaluating

(“Iqbal

them

under

Nevertheless, dismissal for failure to state a claim can

absence

of

factual

support

for

a

cognizable

legal

theory.

A complaint may also be dismissed for failure to state a
if

it

discloses

some

fact

or

complete

defense

that

will

Franklin v. Murphy, 745 F.2d 1221,

5

1

IV.

2

DISCUSSION

3
4

The

Complaint

5

although

6

1915A(b)(1).

leave

contains

to

amend

deficiencies

will

be

warranting

granted.

See

dismissal,

28

U.S.C.

§

7
8

A.

The Complaint Fails To Satisfy Federal Rule Of Civil Procedure 8

9

As

10

currently

pled,

Plaintiff’s

allegations

do

not

provide

11

sufficient detail to assert a § 1983 claim in accordance with Federal

12

Rule of Civil Procedure 8.

13

complaint contain “‘a short and plain statement of the claim showing

14

that

15

defendant fair notice of what the . . . claim is and the grounds upon

16

which it rests.’”

17

8(a)).

18

entitlement

19

complaint

20

requirement of providing not only fair notice of the nature of the

21

claim, but also grounds on which the claim rests.

22

8(a)(2); Twombly, 550 U.S. at 555.

the

pleader

is

Rule 8 requires, in relevant, part that a

entitled

to

relief,’

in

order

to

‘give

the

Twombly, 550 U.S. at 555 (quoting Fed. R. Civ. P.

Rule 8 therefore requires more than a blanket assertion of
to

it

relief;

is

hard

without
to

see

some
how

a

factual

allegations

claimant

could

in

the

satisfy

the

Fed. R. Civ. P.

23

Here, the Complaint does not comply with Rule 8 because it

24
25

contains conclusory and confusing allegations.

Plaintiff alleges

26

that

appointments were

27

denied, but Plaintiff also references seeing Dr. Aqil on several

28

occasions

his

requests

and

for

being

medications

prescribed

and

doctors’

Ibuprofen.
6

(See

Compl.

at

2-5).

1

Moreover, Plaintiff generally asserts that his appeals were denied,

2

but he fails to state what department denied his appeal or who was

3

aware that Plaintiff’s medical records were located at the county

4

jail.

5

claim if “one cannot determine from the complaint who is being sued,

6

for what relief, and on what theory.”

7

1172, 1178 (9th Cir. 1996); see also Chevalier v. Ray and Joan Kroc

8

Corps. Cmty. Ctr., No. C-11-4891 SBA, 2012 WL 2088819, *2 (N.D. Cal.

9

June 8, 2012) (complaint that did not “identify which wrongs were

10

A complaint is subject to dismissal for failure to state a

McHenry v. Renne, 84 F.3d

committed by which Defendant” violated Rule 8).

11

Consequently, the Complaint does not show there are plausible

12
13

grounds

for

relief,

nor

does

it

provide

enough

facts

for

the

14

Defendant to properly respond to the Complaint.

15

rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir.

16

2011).

17

activities

18

adequately respond to the Complaint without this basic information.

19

Accordingly,

20

provide more facts to satisfy Rule 8.

Cafasso, U.S. ex

Plaintiff fails to name what CIM personnel carried out the
discussed

the

in

the

Complaint

is

Complaint,

dismissed

and

with

Defendant

leave

in

cannot

order

to

21
22
23

B.

The

Complaint

Fails

To

State

An

Eighth

Amendment

Claim

For

Deliberate Indifference To Serious Medical Needs

24
25

In order to state a § 1983 claim for inadequate medical care, a

26

plaintiff must allege acts or omissions by prison officials that are

27

sufficiently

28

inmate’s “serious medical needs.”

harmful

to

evidence

deliberate

indifference

to

an

Farmer v. Brennan, 511 U.S. 825,
7

1

834 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976).

2

can show a serious medical need by demonstrating that failure to

3

treat the condition could result in further significant injury or

4

the unnecessary and wanton infliction of pain.

5

see also Lopez v. Smith, 203 F.2d 1122, 1131 (9th Cir. 2000) (en

6

banc)

7

condition

8

activities,” and “the existence of chronic and substantial pain”)

9

(citation

(examples
that

of

“serious

significantly

omitted).

medical

affects

Plaintiff’s

10

satisfy

11

medical need.”

12

needs”
an

alleged

A plaintiff

Farmer, 511 at 834;

include

“a

medical

individual’s

daily

back

pain

appears

suffers

from

a

to

component of his claim.

the

requirement

that

Plaintiff

“serious

However, Plaintiff has not satisfied the subjective

13
14

To be liable for “deliberate indifference,” a jail official

15

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

16

that a substantial risk of serious harm exists, and he must also

17

draw the inference.”

18

failure

19

perceived but did not, while no cause for commendation, cannot . . .

20

be condemned as the infliction of punishment.”

21

inadequate treatment because of accident, mistake, inadvertence, or

22

even gross negligence does not amount to a constitutional violation.

23

Estelle

24

recklessness (failure to act in the face of an unjustifiably high

25

risk

26

insufficient to establish a violation.

27

Similarly, a showing of medical malpractice or negligence is also

28

insufficient to establish a constitutional deprivation.

of

to

v.

Farmer, 511 U.S. at 837.

alleviate

Gamble,

harm

which

a

429

is

significant

U.S.

so

97,

obvious

8

risk

105-06

that

it

“[A]n official’s

that

he

should

Id. at 838.

(1976).

should

Even

be

have

Thus,

civil

known)

is

Farmer, 511 U.S. at 836-37.

See Toguchi

1

v.

2

indifference established only where defendant subjectively “knows of

3

and disregards an excessive risk to inmate health and safety.”).

4

inmate’s disagreement with his medical treatment or a difference of

5

opinion over the type or course of treatment does not support a

6

claim of cruel and unusual punishment under the Eighth Amendment.

7

Randle v. Alexander, 960 F.Supp. 2d 457, 481 (S.D.N.Y. 2013).

Chung,

391

F.3d

1051,

1057

(9th

Cir.

2004)

(deliberate

An

8
9

Plaintiff’s

allegations

fail

to

state

a

claim

under

these

10

standards.

11

that Defendant had actual knowledge of Plaintiff’s serious medical

12

needs

13

interfere with medical treatment.

14

1091,

15

requests to see a specialist, have a MRI done, and be placed on a

16

special meal plan, which were all denied.

However, Plaintiff was

17

prescribed Ibuprofen and seen by a doctor.

(Compl. at 2-5).

18

mere

19

disagreement about the course of his treatment is not sufficient to

20

satisfy Section 1983’s stringent deliberate indifference standard.

21

Plaintiff has not alleged any facts that establish that Defendant

22

knew of and disregarded an excessive risk to Plaintiff’s health or

23

safety.

24

has alleged that Defendant acted negligently by failing to grant

25

Plaintiff’s

26

inmate’s

27

States, 838 F.2d 390, 394 (9th Cir. 1988).

28

cannot demonstrate, on the facts alleged, that Defendant acted with

and

1096

Plaintiff has not alleged specific facts establishing

purposely

(9th

failure

decided

Cir.

to

to

2006).

grant

deny,

delay,

Fourteenth

but

Plaintiff

Plaintiff’s

mere

Amendment

intentionally

See Jett v. Penner, 439 F.3d
alleges

requests

See Toguchi v. Chung, 391 F.3d at 1057.

requests,

or

negligence

rights.

9

See

that

or

he

filed

The

Plaintiff’s

At best, Plaintiff

does

not

Hutchinson

violate
v.

an

United

Accordingly, Plaintiff

1

deliberate indifference by depriving Plaintiff of adequate medical

2

care.

3
4

C.

5

Plaintiff’s Claims For Damages Against Defendant In His Official
Capacity Must Be Dismissed

6

Plaintiff requests $25,000 in money damages from Defendant, as

7
8

the “legal custodian” of Plaintiff.2

9

advised that the Eleventh Amendment bars actions in federal court for
damages

against

state

(Compl. at 1).

officers

sued

in

Plaintiff is

10

money

their

official

11

capacities.

12

U.S. 58, 71 (1989); Krainski v. Nevada ex rel. Bd. of Regents of

13

Nevada System of Higher Educ., 616 F.3d 963, 967-68 (9th Cir. 2010).

14

Therefore,

15

capacity must be dismissed.

See Will v. Michigan Department of State Police, 491

any

damages

claims

against

Defendant

in

his

official

16
17

D.

18

Plaintiff Fails To Adequately Allege Personal Participation By
Defendant

19
20

Liability

under

21

participation.

22

(citations

1983

requires

a

defendant’s

personal

23

vicarious liability is inapplicable to Bivens and § 1983 suits, a

24

plaintiff must plead that each Government-official defendant, through

25

the

26

Constitution.”).

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)

omitted);

official’s

§

own

see

also

Iqbal,

individual

556

U.S.

actions,

at

has

676

(“Because

violated

the

A supervisor is only liable for the constitutional

27
28

2

Plaintiff does not state whether Defendant is
official or individual capacity. (See Compl. at 1).
10

sued

in

his

1

violations

2

directed the violations, or knew of the violations and failed to act

3

to prevent them.

of

subordinates

if

the

supervisor

participated

in

or

Taylor, 880 F.2d at 1045.

4

Defendant

5

is

the

warden

official.

of

is

8

not

9

personally involved in the alleged acts.
against

to

(Id.).

Thus, Plaintiff’s

liability,

12

“[v]ague

13

civil rights violations are not sufficient to withstand a motion to

14

dismiss,” Ivey v. Bd. Of Regents, 673 F.2d 266, 268 (9th Cir. 1982);

15

see also Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th

16

Cir.

17

Plaintiff’s claim against Defendant must be dismissed with leave to

18

amend.

and

1997),

conclusory

Plaintiff

in

allegations

has

not

a
of

stated

be

was

11

inapplicable

to

Defendant

allegations

is

appear

that

that

10

which

Defendant

demonstrate

asserts

a

Defendant is the “legal custodian” of Plaintiff, but Plaintiff does
facts

Plaintiff

therefore

7

other

1).

he

supervisory

any

at

and

6

allege

(Compl.

CIM,

based

official

a

claim

vicarious

action.

§ 1983

on

Because

participation

against

in

Defendant.

19
20

E.

There Is No Private Right Of Action Under CCR, Title 15

21

Although

22

Plaintiff

alleges

a

claim

under

CCR,

Title

15

§

23

3350(a) (Compl. at 6), the Court has found no authority that creates

24

or acknowledges a private right of action under CCR, Title 15.

25

mere existence of regulations that govern the conduct of prison

26

employees does not necessarily entitle Plaintiff to sue civilly to

27

enforce these regulations.

28

1063,

1070

(9th

Cir.

The

See e.g., Cousins v. Lockyer, 568 F.3d

2009)

(violation
11

of

“State

departmental

1

regulations do not establish a federal constitutional violation”);

2

Spencer v. Brazelton, No. 1:14-CV-0707-MJS, 2015 WL 75141, at *2

3

(E.D. Cal. Jan. 6, 2015) (“The mere existence of the CCR and DOM

4

does not create a civil cause of action for violation of their

5

terms.”).

6

Title 15 exists, leave to amend Plaintiff’s Title 15 claims would be

7

futile, and is therefore denied.

Because no independent claim for a violation of CCR,

8
9
10

F.

Writ Of Habeas Corpus Relief Cannot Be Granted In A § 1983 Civil
Rights Action

11
12

“[T]he exclusive federal remedy for a state prisoner seeking

13

release

from

confinement

14

requirement

15

Thunderbird Mobile Home Vill., 723 F.2d 675, 681 (9th Cir. 1984)

16

(citing

17

Habeas corpus relief is not an “appropriate or available remedy for

18

damages claims” brought under § 1983, and the Court will deny any

19

request for habeas corpus relief in a § 1983 action.

20

McDonnell, 418 U.S. 539 (1974); see also Wilkinson v. Dotson, 544

21

U.S. 74, 78 (2005) (“This Court has held that a prisoner in state

22

custody cannot use a § 1983 action to challenge ‘the fact or duration

23

of his confinement.’”).

of

Preiser

is

exhaustion

v.

of

Rodriguez,

habeas
state

411

corpus,

with

remedies.”

U.S.

475,

499

its

Ybarra

n.

14

attendant
v.

Reno

(1973)).

Wolff v.

24
25

Here, Plaintiff has filed claims under § 1983, but Plaintiff

26

requests the Court to “[i]ssue a writ of habeas corpus” upon success

27

on the merits of his claims.

(Compl. at 9).

28
12

Plaintiff is advised

1

that he is precluded from obtaining habeas corpus relief through this

2

§ 1983 action.

3
4

V.

5

ORDER

6
7

For

the

reasons

discussed

above,

the

Court

DISMISSES

the

8

Complaint WITH LEAVE TO AMEND.

If Plaintiff still wishes to pursue

9

this action, he shall file a First Amended Complaint no later than 30

10

days from the date of this Order.

The First Amended Complaint must

11

cure the pleading defects discussed above and shall be complete in

12

itself without reference to the original Complaint.

13

(“Every amended pleading filed as a matter of right or allowed by

14

order of the Court shall be complete including exhibits.

15

pleading shall not refer to the prior, superseding pleading.”).

16

means that Plaintiff must allege and plead any viable claims in the

17

original Complaint again.

See L.R. 15-2

The amended
This

18
19

In any amended complaint, Plaintiff should identify the nature

20

of each separate legal claim and confine his allegations to those

21

operative facts supporting each of his claims.

22

Rule of Civil Procedure 8(a), all that is required is a “short and

23

plain statement of the claim showing that the pleader is entitled to

24

relief.”

25

First Amended Complaint should be consistent with the authorities

26

discussed above.

27

include

28

allegations

Pursuant to Federal

However, Plaintiff is advised that the allegations in the

new

In addition, the First Amended Complaint may not

Defendants
in

the

or

claims

previously

not

filed
13

reasonably
complaints.

related

to

Plaintiff

the
is

1

strongly encouraged to once again utilize the standard civil rights

2

complaint form when filing any amended complaint, a copy of which is

3

attached.

4
5

Plaintiff is explicitly cautioned that failure to timely file a

6

First

Amended

Complaint,

7

described above, may result in a recommendation that this action, or

8

portions

9

prosecute and/or failure to comply with court orders.

thereof,

be

or

failure

dismissed

with

to

correct

prejudice

the

for

deficiencies

failure

to

See Fed. R.

10

Civ. P. 41(b).

Plaintiff is further advised that if he no longer

11

wishes to pursue this action in its entirety or with respect to

12

particular Defendants or claims, he may voluntarily dismiss all or

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any part of this action by filing a Notice of Dismissal in accordance

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with Federal Rule of Civil Procedure 41(a)(1).

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Dismissal is attached for Plaintiff’s convenience.

A form Notice of

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IT IS SO ORDERED.

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Dated: February 21, 2017

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______________/s/_____________
ALKA SAGAR
United States Magistrate Judge

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