McColm v. State of California et al

Filing 13

ORDER Dismissing Complaint With Leave to Amend, signed by Chief Judge Ralph R. Beistline on 03/03/15. Amended Complaint due by 4/3/2015 (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
PATRICIA A. MCCOLM,
Case No. 1:14-cv-00580-RRB
Plaintiff,
DISMISSAL ORDER
vs.
STATE OF CALIFORNIA, et al.,
Defendants.

Patricia A. McColm, a state prisoner appearing pro se and in forma pauperis,1 filed
a civil rights complaint in this Court.2 The complaint arises out of Plaintiff’s incarceration
at the California Correctional Facility for Women, Chowchilla, California.3 Although it is
unclear from the Complaint, it appears that Plaintiff brings her action under the Civil Rights
Act of 1964, as amended (42 U.S.C. §§ 2000a, et seq.), the Americans with Disabilities Act
(42 U.S.C. §§ 12101, et seq.), the Age Discrimination in Employment Act of 1967, as
amended (42 U.S.C. §§ 2000e-2, et seq.), as well as several state-law claims.4

1

Docket 9.

2

Plaintiff, appearing pro se and in forma pauperis, filed two other actions in this
district: McColm v. Trinity County, 2:12-cv-01984-MCE-CMK (unscreened); and McColm
v. Trinity County, 2:14-cv-00773-KJM-CKD (dismissed, February 9, 2015).
3

It appears from the record that Plaintiff has since been released from custody.
Docket 10.
4

In addition to the State of California, Plaintiff names as Defendants: California
Department of Corrections and Rehabilitation; California Correctional Women’s Facility;
(continued...)
DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 1

I.

SCREENING STANDARD
This Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity.5 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”6 Likewise,
a prisoner must exhaust all administrative remedies as may be available,7 irrespective of
whether those administrative remedies provide for monetary relief.8
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”9 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

4

(...continued)
California Correctional Health Care Services; 65 named individuals; and 250 Does.
5

28 U.S.C. § 1915A(a).

6

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
7

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006) (“proper
exhaustion” under § 1997e(a) is mandatory and requires proper adherence to
administrative procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion
of administrative remedies must be completed before filing suit).
8

See Booth, 532 U.S. at 734.

9

Fed. R. Civ. P. 8(a)(2).

DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 2

accusation.”10 Failure to state a claim under § 1915A incorporates the familiar standard
applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.11
This requires the presentation of factual allegations sufficient to state a plausible
claim for relief.12 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of
entitlement to relief.’”13 Further, although a court must accept as true all factual allegations
contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true.14
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”15

10

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 555 (2007)).
11

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

12

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting and applying Iqbal and Twombly).
13

Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

14

Id.

15

Id. (quoting Twombly, 550 U.S. at 555).

DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 3

II.

DISCUSSION
Prisoner pro se pleadings are given the benefit of liberal construction.16 While this

Court must liberally construe papers filed by pro se parties, pro se parties must none-theless follow the applicable rules of practice and procedure.17 The Complaint before the
Court reads in narrative form. Under the simplified standard of Federal Rule of Civil
Procedure 8, “a plaintiff need only plead sufficient allegations of underlying facts to to give
fair notice and enable the opposing party to defend itself effectively. . ..”18 As presently
drafted it is extremely difficult, if at all possible, to determine from the Complaint which act
or acts of each Defendant violated which of Plaintiff’s rights. Plaintiff alleges a multitude
of different acts without clearly specifying which Defendant(s) committed which act.19 The
major deficiencies in the Complaint are summarized as follows.
Medical Malpractice

16

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010).
17

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the
same rules of procedure that govern other litigants.”) (overruled in part on other grounds
in Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc)).
18

Merritt v. Countrywide Fin. Corp., 759 F.3d 1023, 1033 (9th Cir. 2014) (internal
quotation marks and citation omitted)
19

The Complaint consists of numerous unnumbered paragraphs, undivided into
causes of action. In amending her Complaint Plaintiff should: (1) number the paragraphs
sequentially; and (2) divide her Complaint into separate claims/causes of action to the
extent that the claim is directed towards different defendants, arising out of different acts
or on different dates. The Complaint must be drafted in a manner that permits each
defendant to ascertain which act or acts he or she is being called upon to respond.
DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 4

Plaintiff’s Complaint is directed at several medical care providers. The Supreme
Court, holding that the infliction of unnecessary suffering on prisoners violated the Eighth
Amendment, stated:
[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner’s serious illness or injury
states a cause of action under § 1983. 20
In Estelle the Supreme Court distinguished “deliberate indifference to serious medical
needs of prisoners,” from “negligen[ce] in diagnosing or treating a medical condition,”
holding that only the former violates the Constitution.21 In short, Eighth Amendment liability
requires “more than ordinary lack of due care for the prisoner's interests or safety.”22
“Deliberate indifference is a high legal standard. A showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”23 A mere difference of medical opinion regarding the course of medical

20

Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (footnotes, internal quotation
marks, and citations omitted).
21

Id. at 106.

22

Whitley v. Albers, 475 U.S. 312, 319 (1986).

23

Toguchi v. Chung, 391 F. 3d 1051, 1060 (9th Cir. 2004); see Hallett v. Morgan,
296 F.3d 732, 744 (9th Cir. 2002); see also Wood v. Housewright, 900 F.2d 1332, 1334
(9th Cir. 1990) (stating that even gross negligence is insufficient to establish a
constitutional violation).
DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 5

treatment is “insufficient as a matter of law, to establish deliberate indifference.”24 To the
extent that Plaintiff complains about the level of her medical care, her allegations, even
accepted on their face as true, fall far short of this standard.
Conspiracy
Plaintiff makes a general, omnibus allegation that the Defendants in doing the
myriad of acts alleged were doing so in the furtherance of some grand conspiracy.
Plaintiffs must plead the basic elements of a civil conspiracy: an agreement and concerted
action amongst the defendants in the furtherance of that agreement.25 As presently
drafted, the Complaint falls far short of meeting this standard.
Supervisor Liability
Section 1983 suits do not support vicarious liability, a plaintiff must demonstrate that
each defendant personally participated in the deprivation of his or her rights.26 As presently
constituted the Complaint appears to name some of the Defendants solely in their

24

Toguchi, 391 F.3d at 1059–60 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)); Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.
1981) (noting, also, that a disagreement between a prisoner and a medical professional
over the most appropriate course of treatment cannot give rise to a viable claim of
deliberate indifference).
25

See Wasco Products, Inc. v. Southwall Technologies, Inc., 435 F.3d 989, 990–91
(9th Cir. 2006); see also Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008)
(noting that a bare allegation of a conspiracy is almost impossible to defend against where
numerous individuals are concerned).
26

Iqbal, 556 U.S. at 677; OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th
Cir. 2012); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002); see Monell v. Dep’t of
Soc. Svcs., 436 U.S. 658, 691–95 (1978) (rejecting the concept of respondeat superior in
the context of § 1983, instead requiring individual liability for the violation).
DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 6

supervisory capacity without alleging that they participated in, directed, or knowingly failed
to prevent the deprivation of Plaintiff’s right(s).27
State/Official Capacity Individuals
Plaintiff’s complaint to the extent it seeks compensatory damages as against the
State of California and its agencies is barred by the Eleventh Amendment.28 The same
result holds for the individual defendants sued in their official capacities.29 To the extent
Plaintiff seeks injunctive relief, because she is no longer in custody, this Court cannot grant
her effective relief, thereby rendering that claim moot. Thus, Plaintiff’s claims against
California, its agencies and the individuals in their official capacity must be dismissed.
Validity of the Conviction
Although it is unclear from the Complaint, it appears that Plaintiff may be challenging
her conviction.30 To the extent Plaintiff is challenging the fact of her custody, not the
conditions, it must be brought in a petition for habeas corpus relief under 28 U.S.C.
§ 2254.31 Consequently, Plaintiff’s allegations concerning her conviction are surplusage.

27

See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under [§] 1983
arises only upon a showing of personal participation by the defendant. A supervisor is only
liable for the constitutional violations of . . . subordinates if the supervisor participated in
or directed the violations, or knew of the violations and failed to act to prevent them.”)
(citations omitted)).
28

Brown v. Oregon Dept. of Corr., 751 F.3d 983, 989 (9th Cir. 2014).

29

Id.; Armstrong v. Wilson, 124 F.3d 1019, 1025–26 (9th Cir. 1997).

30

Complaint, pp. 4–5.

31

Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (“Suits challenging the
validity of the prisoner’s continued incarceration lie within the heart of habeas corpus,
(continued...)
DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 7

Doe Defendants
To the extent that Plaintiff names Doe defendants in her Complaint: “As a general
rule, the use of ‘John Doe’ to identify a defendant is not favored.”32 However, where the
identity of the unknown defendants is not known prior to the filing of the complaint, a
plaintiff should be given an opportunity to discover the true identity of the of the unknown
defendants unless it is clear that discovery would not reveal their identities.33 In its present
state, it is unclear whether the Complaint meets this standard.
State Law Claims
To the extent that Plaintiff alleges that the actions of Defendants violated state law,
§ 1983 does not provide a cause of action for those claims.34 Except to the extent Plaintiff
pleads a viable federal claim against the Defendant(s) this Court declines to exercise its
supplemental jurisdiction over Plaintiff’s state law claims.35 Accordingly, this Court will

31

(...continued)
whereas a § 1983 action is a proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact or length of
his custody.”) (internal quotation marks and citation omitted)).
32

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980); see Wiltsie v. California
Dep't of Corrections, 406 F.2d 515, 518 (9th Cir.1968) (“The action was also properly
dismissed as to the fictitious defendants identified only as ‘Does', in the complaint as
amended.”).
33

Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie).

34

Loftis v. Almagar, 704 F.3d 645, 647 (9th Cir. 2012) (citing Estelle, 502 U.S. at

67).
35

“The district courts may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if— . . . (3) the district court has dismissed all claims over which it has
original jurisdiction . . ..” 28 U.S.C. § 1367(c).
DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 8

exercise its supplemental jurisdiction over state law claims solely to the extent that the
same act also gives rise to a cognizable federal claim.
Filing Fee
As noted above, the record reflects that Plaintiff is no longer incarcerated. Plaintiff
was granted leave to proceed in forma pauperis based upon her status as prisoner under
the Prison Litigation Reform Act (“PLRA”).36 Once she was released from custody, Plaintiff
ceased being a prisoner.37 Consequently, at that point, there was no longer a prisoner trust
account from which payment could be made.38 The PLRA by its express terms does not
waive the filing fee.39 Therefore, as a condition of proceeding in this Court, Plaintiff must
pay the filing fee.
III.

ORDER
Accordingly, the Complaint on file herein is DISMISSED without leave to amend as

to the State of California, California Department of Corrections and Rehabilitation,
California Correctional Women’s Facility, California Correctional Health Care Services, and
all individual Defendants in their official capacity. As to all Defendants sued in their
individual capacities the Complaint is DISMISSED, with leave to amend.40

36

28 U.S.C. § 1915.

37

See Page v. Torrey, 201 F.3d 1136, 1129–40 (9th Cir. 2000).

38

See 28 U.S.C. § 1915(b).

39

Id.

40

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th
Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”);
(continued...)
DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 9

Not later than April 3, 2015, Plaintiff must file an amended complaint consistent with
this Order that complies with the Federal Rules of Civil Procedure and the local rules of the
Eastern District of California, accompanied by the full amount of the unpaid filing fee.
If Plaintiff fails to comply with the terms of this Order by April 3, 2015, or such
other date as the Court may order, the Court may, without further notice, enter a
judgment of dismissal of this action without prejudice.41
IT IS SO ORDERED this 3rd day of March, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

40

(...continued)
Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (explaining that leave
to amend should be given unless amendment would be futile).
41

See Fed. R. Civ. P. 41(b).

DISMISSAL ORDER
McColm v. State, 1:14-cv-00580-RRB – 10