Coreno v. Armstrong et al

Filing 4

ORDER Denying 3 Motion for Appointment of Counsel, Granting 2 Motion to Proceed In Forma Pauperis, Order Dismissing Civil Action for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b): The Secretary of the CDCR is orde red to collect the $33.14 initial partial filing fee assessed by this Order and forward that amount to the Clerk of Court, if those funds are available at the time this Order is executed. The Secretary of the CDCR is also ordered to collect fro m Plaintiff's prison trust account the balance of the filing fee owed in this case by collecting monthly payments from Plaintiff's prison trust account in an amount equal to twenty percent (20%) of the preceding month's income cre dited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10. Plaintiff is granted sixty (60) days leave from the date this Order is filed in which to file a First Amended Complaint which c ures all the deficiencies of pleading noted in this order. Signed by Judge Larry Alan Burns on 11/18/09. (Blank First Amended Complaint and copy of Order mailed to Plaintiff, Order electronically transmitted to Matthew Cate, Secretary CDCR)(pdc) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 AND 20 21 22 23 24 25 26 27 28 P lai n tiff , a state inmate currently incarcerated at Salinas Valley State Prison located in in Soledad, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U .S .C . § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); /// D e f e n d a n ts . (3 ) DISMISSING CIVIL ACTION F O R FAILING TO STATE A CLAIM P U R S U A N T TO 28 U.S.C. § 1915(e)(2)(B) & 1915A(b) M A R C ARMSTRONG, et al., vs. (1) DENYING MOTION FOR A P P O I N T M E N T OF COUNSEL [Doc. No. 3]; (2 ) GRANTING MOTION TO P R O C E E D IN FORMA PAUPERIS, I M P O S I N G $33.14 INITIAL P A R T IA L FILING FEE, G A R N I S H IN G BALANCE FROM P R IS O N E R 'S TRUST ACCOUNT [ D o c . No. 2]; J O S E P H CORENO, C D C R #T-86813, P la in tif f , Civil No. ORDER: 09-2504 LAB (POR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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in s te a d , he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2], along with a "Request for Appointment of Counsel" [Doc. No. 3]. I. M OTION TO PROCEED IFP A ll parties instituting any civil action, suit or proceeding in a district court of the United S t a t e s , 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 pay only if the party is g ra n te d leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F .3 d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). P riso n e rs granted leave to proceed IFP however, remain obligated to pay the entire fee in in s ta llm e n ts , regardless of whether the action is ultimately dismissed for any reason. See 28 U .S .C . § 1915(b)(1) & (2). The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1), and has further provided a certified copy of his trust account statement as required b y 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement shows a n average monthly balance of $165.71 and average monthly deposits of $72.49. Based on this f in a n c ia l information, the Court GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 2] and a ss e ss e s an initial partial filing fee of $33.14 pursuant to 28 U.S.C. § 1915(b)(1). However, the S e c re ta ry of the CDCR, or his designee, shall collect this initial fee only if sufficient funds in P la in tiff's account are available at the time this Order is executed pursuant to the directions set f o rth below. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be p ro h ib ite d from bringing a civil action or appealing a civil action or criminal judgment for the re a so n that the prisoner has no assets and no means by which to pay the initial partial filing f e e ."); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely o n a "failure to pay ... due to the lack of funds available to him when payment is ordered."). The re m a in in g balance shall be collected and forwarded to the Clerk of the Court pursuant to the installm en t payment provisions set forth in 28 U.S.C. § 1915(b)(1). /// 2

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II.

MO TION FOR APPOINTMENT OF COUNSEL [Doc.

No. 3]

P lain tiff also requests the appointment of counsel to assist him in prosecuting this civil ac tio n . The Constitution provides no right to appointment of counsel in a civil case, however, u n le s s an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. o f Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district c o u rts are granted discretion to appoint counsel for indigent persons. This discretion may be e x e rc is e d only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th C ir. 1991). "A finding of exceptional circumstances requires an evaluation of both the

` lik e l ih o o d of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and b o th must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 7 8 9 F.2d 1328, 1331 (9th Cir. 1986)). T h e Court denies Plaintiff's request without prejudice, as neither the interests of justice n o r exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 8 2 7 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. I I I. S CREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) T h e PLRA's amendments to 28 U.S.C. § 1915 also obligate the Court to review c o m p la in ts filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated o r detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, v io la tio n s of criminal law or the terms or conditions of parole, probation, pretrial release, or d iv e rs io n a ry program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) a n d 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil a c tio n 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). B e f o re amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte d is m is s a l of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 3

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U .S .C . § 1915(e)(2) and § 1915A now mandate that the court reviewing an IFP or prisoner's suit m a k e 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, b u t requires a district court to dismiss an in forma pauperis complaint that fails to state a c laim ."); 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 a lle g a tio n s of material fact and must construe those facts in the light most favorable to the p la in tif f ." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) " p a ra lle ls the language of Federal Rule of Civil Procedure 12(b)(6)"). Here, however, even p re su m in g Plaintiff's allegations true, the Court finds his Complaint fails to state a claim upon w h ic h relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b); Lopez, 203 F.3d at 1 1 2 6 -2 7 ; Resnick, 213 F.3d at 446, n.1. A. 4 2 U.S.C. § 1983

T o state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains o f was committed by a person acting under color of state law; and (2) that conduct violated a rig h t secured by the Constitution and laws of the United States. Humphries v. County of Los A n g e le s, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). B. E ig h th Amendment Medical Care Claims

P lain tiff alleges that, while he was housed at the Richard J. Donovan Correctional Facility ("D o n o v an ") on February 18, 2007, several unnamed correctional officers, as well as Dr. A rm s tro n g , Dr. Hunt and Nurse Hillis, were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. Plaintiff claims that while he was housed in Administrative Segregation at Donovan on F e b ru a ry 18, 2007, his back "went completely out and [he] was unable to walk, sit up or stand u p and was in excruciating pain." (Compl. at 9.) He then claims that several unidentified c o rre c tio n a l officers placed him in handcuffs, put him on a gurney and "dragged Plaintiff on the g ro u n d all the way across the building and outside to the white van." (Id.) Plaintiff was then 4

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tra n s p o rte d to the Correctional Treatment Center ("CTC"). (Id. at 9-10.) Plaintiff was seen by D e f e n d a n t Hilis who alleged told Plaintiff that he was "fine" and refused to give him any pain m e d ic a tio n . (Id. at 14). Plaintiff alleges that Defendant Hilis consulted with Dr. Hunt who told H ilis to give Plaintiff pain medication but Hunt did not order any further tests. (Id.) Plaintiff w a s transported back to his cell where he "continued to yell for medical attention." (Id. at 15.) U n id e n tif ie d correctional officers again allegedly handcuffed Plaintiff, dragged him on a gurney a n d transported him back to the CTC. (Id.) F ro m February 21, 2007 to March 22, 2007, Plaintiff was seen and examined regularly b y Dr. Armstrong. (Id. at 19.) Defendant Armstrong ordered an MRI for Plaintiff and told P la in tif f that the results were "normal." (Id.) After residing in the CTC for approximately a m o n th , Plaintiff was released by Dr. Armstrong who gave him a walker for mobility. (Id.) P la in tif f was later transferred to Salinas Valley State Prison where prison doctors recommended th a t Plaintiff needed to have back surgery. (Id.) W h ile Plaintiff may have stated facts sufficient to state an Eighth Amendment claim a g a in s t some of the John Doe Defendants, he fails to identify them with any particularity. As a general rule, the use of "doe" pleading to identify unknown defendants is disfavored. See G ille s p ie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980). Thus, if Plaintiff amends his C o m p l a in t , he must include facts to more specifically identify these Defendants. A s for the remaining Defendants, Armstrong, Hunt and Hilis, Plaintiff has failed to state a n Eighth Amendment inadequate medical care claim. In order to assert a claim for inadequate m e d ic a l care, Plaintiff must allege facts which are sufficient to show that each person sued was " d e lib e ra te ly indifferent to his serious medical needs." Helling v. McKinney, 509 U.S. 25, 32 (1 9 9 3 ); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Prison officials must purposefully ignore o r fail to respond to Plaintiff's pain or medical needs. Estelle, 429 U.S. at 105-06. Thus, to state a claim, Plaintiff must allege facts sufficient to show both: (1) an objectively "serious" medical n e e d , i.e., one that a reasonable doctor would think worthy of comment, one which significantly a f f e c ts his daily activities, or one which is chronic and accompanied by substantial pain, see D o ty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); and (2) a subjective, and 5

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" s u f f ic ie n tly culpable" state of mind on the part of each individual Defendant. See Wilson v. S e ite r, 501 U.S. 294, 302 (1991). In other words, Plaintiff must plead facts that show that D e f e n d a n ts knew of his "serious" need for medical attention and that each one nevertheless d is re g a rd e d his need despite the excessive risk posed to his health. See Farmer, 511 U.S. at 837. T h e indifference to medical needs also must be substantial; inadequate treatment due to m a lp ra c tic e , or even gross negligence, does not amount to a constitutional violation. Estelle, 429 U .S . at 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Moreover, a mere d if f e re n c e of opinion between an inmate and prison medical personnel regarding appropriate m e d ic a l diagnosis and treatment are not enough to establish a deliberate indifference claim. S a n c h e z v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Here, Plaintiff disagrees with the medical tre a tm e n t provided by Defendants Armstrong, Hunt and Hilis and these claims are insufficient to adequately state an Eighth Amendment deliberate indifference to serious medical need claim. T h u s , Plaintiff's Complaint must be dismissed for failing to state a claim upon which s e c tio n 1983 relief may be granted. See 28 U.S.C. § § 1915(e)(2) & 1915A(b)(1). IV . C ONCLUSION AND ORDER G o o d cause appearing therefor, IT IS HEREBY ORDERED that: 1. 2. P la in t if f ' s Request for Appointment of Counsel [Doc. No. 3] is DENIED. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]

is GRANTED. 3. T h e Secretary of the CDCR, or his designee, is ordered to collect the $33.14

in itia l partial filing fee assessed by this Order and forward that amount to the Clerk of Court, if those funds are available at the time this Order is executed. THE INITIAL PARTIAL F IL IN G FEE SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER A S S IG N E D TO THIS ACTION. 4. T h e Secretary of the CDCR, or his designee, is ordered to collect from Plaintiff's

p riso n trust account the balance of the filing fee owed in this case by collecting monthly p a ym e n ts from Plaintiff's prison trust account in an amount equal to twenty percent (20%) of th e preceding month's income credited to the account and forward payments to the Clerk of the 6

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C o u rt each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL MONTHLY PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THAT N A M E AND NUMBER ASSIGNED TO THIS ACTION. 5. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,

S e c re ta ry, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, S a c ra m e n to , California 95814. I T IS FURTHER ORDERED that: 6. P la in t if f' s Complaint is DISMISSED without prejudice for failing to state a claim

u p o n which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). H o w e v er, 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 a b o v e . Plaintiff's Amended Complaint must be complete in itself without reference to his p re v io u s pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and all claims not rea lle g e d in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 5 6 7 (9th Cir. 1987). Further, Plaintiff is cautioned that should he elect not to amend, or if his Amended C o m p lain t still fails to state a claim upon which relief may be granted, the dismissal of this a c tio n may hereafter be counted as a "strike" against him pursuant to 28 U.S.C. § 1915(g). See M c H e n ry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

DATED: November 18, 2009 HONORABLE LARRY ALAN BURNS United States District Judge

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