Paschelke v. Doe et al

Filing 3

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis. Warden ordered to collect from Pla's prison trust acct the $350 balance of the filing fee by collecting monthly payments from the trust acct in an amount eq ual to 20% of the preceding month's income and forward payments to the Clerk of Court each time the amt in the acct exceeds $10 in accordance w/ 28 USC 1915(b)(2). Pla's Complaint is dismissed w/o prejudice for failing to state a claim upon which relief may be granted. Pla is granted 60 days leave from the date this Order is filed to file a First Amended Complaint. Dfts not named and all claims not realleged in the Amended Complaint will be considered waived. Pla is cautioned that should he elect not to amend or if the Amended Complaint still fails to state a claim upon which relief may be granted, the dismissal may be counted as a "strike" pursuant to 28 USC 1915(g). Signed by Judge Irma E. Gonzalez on 10/28/2009. Case closed. (cc: Warden, FCI Victorville) (All non-registered users served via U.S. Mail Service)(jah) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
vs.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
ELIJAH PASCHELKE, BOP #05698298
Plaintiff,

Civil No. ORDER:

09cv2191 IEG (CAB)

(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE AND GARNISHING $350.00 BALANCE FROM PRISONER TRUST ACCOUNT [Doc. No. 2]; AND (2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)

JOHN DOE, San Diego County Sheriff; SAN DIEGO COUNTY; CENTRAL DETENTION FACILITY; MEDICAL STAFF SUPERVISOR, Defendants.

Elijah Paschelke ("Plaintiff"), a federal inmate currently incarcerated at Federal Correctional Institution located in Adelanto, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff claims his constitutional rights were violated when he was housed in the San Diego Central Jail in 2007. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. ///
-109cv2191 IEG (CAB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I.

MOTION TO PROCEED IFP All parties instituting any civil action, suit or proceeding in a district court of the United

States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2). Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). That institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). The Court finds that Plaintiff has attached a certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement shows that he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay . . . due to the lack of funds available to him when payment is ordered."). Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP [Doc.
-209cv2191 IEG (CAB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). II. SUA SPONTE SCREENING PER 28 U.S.C. §§ 1915(e) AND 1915A The PLRA's amendments to 28 U.S.C. § 1915 also obligate the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A). Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 U.S.C. § 1915(e)(2) and § 1915A now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before directing that the Complaint be served by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). Here, however, even presuming Plaintiff's allegations true, the Court finds his Complaint fails to state a claim upon

-3-

09cv2191 IEG (CAB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b); Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446, n.1. A. 42 U.S.C. § 1983

To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains of was committed by a person acting under color of state law; and (2) that conduct violated a right secured by the Constitution and laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). B. Inadequate medical care claims

In his Complaint, it is unclear whether Plaintiff was a pre-trial detainee or whether he was serving a sentence following a criminal conviction when he was housed in the Central Jail in 2007. The Ninth Circuit has noted that while different Constitutional provisions may be applied dependent on whether a plaintiff's claim arise before or after conviction, a "pretrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment," and therefore, "the same standards apply." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); but cf. Gibson v. County of Washoe, 290 F.3d 1175, 1188 n.10 (9th Cir. 2002) (noting that while the Court generally looks to Eighth Amendment cases when reviewing conditions of confinement claims raised by pretrial detainees under the Fourteenth Amendment, "[i]t is quite possible ... that the protections provided pretrial detainees by the Fourteenth Amendment in some instances exceed those provided convicted prisoners by the Eighth Amendment."); see also Lolli v. County of Orange, 351 F.3d 410, 419 n.6 (9th Cir. 2003) (quoting Gibson, 290 F.3d at 1188 n.10). In order to assert a claim for inadequate medical care, Plaintiff must allege facts which are sufficient to show that each person sued was "deliberately indifferent to his serious medical needs." Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Prison officials must purposefully ignore or fail to respond to Plaintiff's pain or medical needs; neither an inadvertent failure to provide adequate medical care, nor mere negligence or medical malpractice constitutes a constitutional violation. Estelle, 429 U.S. at 105-06. In addition, a mere difference of opinion between an inmate and prison medical personnel
-409cv2191 IEG (CAB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Thus, to state a claim, Plaintiff must allege facts sufficient to show both: (1) an objectively "serious" medical need, i.e., one that a reasonable doctor would think worthy of comment, one which significantly affects his daily activities, or one which is chronic and accompanied by substantial pain, see Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); and (2) a subjective, and "sufficiently culpable" state of mind on the part of each individual Defendant. See Wilson v. Seiter, 501 U.S. 294, 302 (1991). While Plaintiff alleges facts indicating that a Sheriff's Deputy refused to allow him to keep his cane which resulted in a fall that "fractured his neck and compounded his back injury," Plaintiff does not identify this individual by name or any other description. (Compl. at 3.) In addition, while Plaintiff may have stated a claim against this unidentified individual, he fails to name this person as a Defendant. Instead, Plaintiff names the Sheriff for San Diego County and the Medical Supervisor as Defendants. Neither of these Defendants are alleged to have direct knowledge of Plaintiff's medical condition nor are they alleged to have been involved in the decision to remove Plaintiff's cane. Thus, Plaintiff cannot show that either the Medical Supervisor or the Sheriff for the County of San Diego had a "sufficiently culpable" state of mind to state a "deliberate indifference" claim. Wilson, 501 U.S. at 302. C. Municipal Liability Claims

Additionally, Plaintiff has named the County of San Diego, Central Detention Facility as a Defendant in this matter. An agency or department of a municipal entity is not a proper defendant under § 1983. Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Rather, the county or city itself is the proper defendant. See Id. "[A] municipality cannot be held liable solely because it employs a tortfeasor ­ or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). A municipality may be liable under § 1983 for monetary, declaratory, or injunctive relief where the constitutional deprivation was caused by the implementation or execution of "a policy statement, ordinance, regulation, or decision
-509cv2191 IEG (CAB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 1388 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). To establish municipal liability, plaintiff must show: (1) he was deprived of a

constitutional right; (2) the city had a policy; (3) the policy amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy was the "moving force behind the constitutional violation." Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see Board of the County Commissioners v. Brown, 520 U.S. 397, 117 S. Ct. at 1388; Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Thus, in order to state a § 1983 claim against San Diego County, Plaintiff must allege facts showing that his injury was caused by individual officers whose conduct conformed to an official city policy, custom or practice. See KarimPanahi, 839 F.2d at 624. Therefore, even were the Court to liberally construe the Complaint as attempting to state a claim against San Diego County, Plaintiff has not stated a § 1983 claim because he has failed to allege that any individual police officer's conduct conformed to an official city policy, custom or practice. Thus, Plaintiff's Complaint must be dismissed for failing to state a claim upon which section 1983 relief may be granted. See 28 U.S.C. § § 1915(e)(2) & 1915A(b)(1). III. CONCLUSION AND ORDER Good cause appearing, IT IS HEREBY ORDERED that: (1) (2) Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) is GRANTED. The Warden, or his designee, is ordered to collect from Plaintiff's prison trust

account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
-609cv2191 IEG (CAB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(3)

The Clerk of the Court is directed to serve a copy of this Order on Warden, FCI

Victorville Medium I, Federal Correctional Institution, P.O. Box. 5400, Adelanto, California 92301. IT IS FURTHER ORDERED that: (4) Plaintiff's Complaint is DISMISSED without prejudice for failing to state a claim

upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). However, Plaintiff is further GRANTED sixty (60) days leave from the date this Order is filed in which to file a First Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to his previous pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and all claims not realleged in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, Plaintiff is cautioned that should he elect not to amend, or if his Amended Complaint still fails to state a claim upon which relief may be granted, the dismissal of this action may hereafter be counted as a "strike" against him pursuant to 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

DATED: October 28, 2009 IRMA E. GONZALEZ, Chief Judge United States District Court

-7-

09cv2191 IEG (CAB)