Clark v. Nelson et al

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/4/2017 GRANTING 2 Motion to Proceed IFP and DIMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the Tehama County Sheriff filed concurrently herewith. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER W. CLARK, 12 Plaintiff, 13 14 No. 2:16-cv-1106-EFB P v. DAVID NELSON, et al., 15 ORDER GRANTING IFP AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A Defendants. 16 Plaintiff is a county inmate proceeding without counsel in an action brought under 42 17 18 19 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 20 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 II. Screening Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 24 constitutional or statutory right; and (2) that the violation was committed by a person acting under 25 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 26 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 27 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 28 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 2 1 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 2 (9th Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the 3 unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 4 He must identify the particular person or persons who violated his rights. He must also plead 5 facts showing how that particular person was involved in the alleged violation. 6 III. 7 Screening Order The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it 8 must be dismissed for failure to state a claim. The complaint first alleges that the criminal 9 defense offered by plaintiff’s public defender violated plaintiff’s Fifth, Sixth, and Fourteenth 10 Amendment rights. The complaint also alleges that the Tehama County Community Crisis 11 Response Unit held plaintiff for only 31 hours, when it was required to hold him for 72 hours, 12 pursuant to section 5150 of the California Welfare and Institutions Code. Lastly, plaintiff claims 13 that the Tehama County Jail Medical/Mental Health Records Department refused to acquire 14 plaintiff’s mental health records, thereby interfering with his not guilty by reason of insanity 15 defense. The named defendants include David Nelson (plaintiff’s public defender), the Tehama 16 County Public Defender’s Office, the Tehama County Community Crisis Response Unit, and the 17 Tehama County Jail Medical/Mental Health Records Department. Plaintiff seeks damages as 18 relief. As set forth below, the allegations fail to state a cognizable claim under the applicable 19 standards. 20 First, plaintiff’s court-appointed attorney cannot be sued under § 1983 based on the facts 21 alleged here, see Polk County v. Dodson, 454 U.S. 312, 318-19 (1981) (public defenders do not 22 act under color of state law for purposes of § 1983 when performing a lawyer’s traditional 23 functions), and any potential claims for legal malpractice do not come within the jurisdiction of 24 the federal courts, Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). 25 Second, as a general rule, a challenge in federal court to the fact of conviction or the 26 length of confinement must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. 27 § 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973). Where success in a section 1983 action 28 would implicitly question the validity of confinement or its duration, the plaintiff must first show 3 1 that the underlying conviction was reversed on direct appeal, expunged by executive order, 2 declared invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck v. 3 Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S. 749, 751 (2004). If 4 plaintiff is claiming that his federal constitutional rights were violated and as a result he was 5 convicted and incarcerated, plaintiff may not recover damages in this action unless he can prove 6 that his conviction has been reversed. 7 Third, plaintiff fails to identify a claim for relief or otherwise show that Tehama County 8 or its departments is liable under section 1983. A municipal entity is liable only if plaintiff shows 9 that his constitutional injury was caused by employees acting pursuant to the municipality’s 10 policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); 11 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic 12 Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). Local government entities may not be held 13 vicariously liable under section 1983 for the unconstitutional acts of its employees under a theory 14 of respondeat superior. See Board of Cty. Comm'rs. v. Brown, 520 U.S. 397, 403 (1997). 15 Because the complaint references “deliberate indifference” in the context of an alleged 16 early release from a mental health hold, the court also notes that to succeed on a claim predicated 17 on the denial of medical care, a plaintiff must establish that he had a serious medical need and 18 that the defendant’s response to that need was deliberately indifferent.1 Jett v. Penner, 439 F.3d 19 1091, 1096 (9th Cir. 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious 20 medical need exists if the failure to treat the condition could result in further significant injury or 21 the unnecessary and wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference 22 23 24 25 26 27 28 1 Because any deliberate indifference claim appears to arise from the crisis unit’s act of prematurely releasing plaintiff from involuntarily commitment, the claim would be governed by the Fourteenth Amendment rather than the Eighth Amendment. Regardless of whether the Eighth Amendment or the Fourteenth Amendment governs, the same legal standards apply. Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (pre-trial detainee’s failure-to-protect claim was governed by the same “deliberate indifference” standard as applies under the Eighth Amendment to convicted prisoners); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (“Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment . . . we apply the same standards.”). 4 1 may be shown by the denial, delay or intentional interference with medical treatment or by the 2 way in which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 3 1988). 4 To act with deliberate indifference, a prison official must both be aware of facts from 5 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 6 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if 7 he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing 8 to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate 9 altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 10 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, 11 even if some treatment is prescribed, may constitute deliberate indifference in a particular case. 12 Id. 13 It is important to differentiate common law negligence claims of malpractice from claims 14 predicated on violations of the Eight Amendment’s prohibition of cruel and unusual punishment. 15 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 16 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 17 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391 18 F.3d 1051, 1057 (9th Cir. 2004). 19 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable 20 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 21 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 22 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 23 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 24 forth the claims and allegations against each defendant. Any amended complaint must cure the 25 deficiencies identified above and also adhere to the following requirements: 26 Any amended complaint must identify as a defendant only persons who personally 27 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 28 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 5 1 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 2 legally required to do that causes the alleged deprivation). 3 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 4 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 5 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 6 Any amended complaint must be written or typed so that it so that it is complete in itself 7 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 8 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 9 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 10 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 11 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 12 1967)). 13 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 14 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 15 See E.D. Cal. L.R. 110. 16 IV. 17 Summary of Order Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted. 19 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 20 in accordance with the notice to the Tehama County Sheriff filed concurrently 21 herewith. 22 3. The complaint is dismissed with leave to amend within 30 days. The complaint 23 must bear the docket number assigned to this case and be titled “Amended 24 Complaint.” Failure to comply with this order will result in dismissal of this 25 ///// 26 ///// 27 ///// 28 ///// 6 1 action for failure to prosecute. If plaintiff files an amended complaint stating a 2 cognizable claim the court will proceed with service of process by the United 3 States Marshal. 4 Dated: October 4, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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