Pegueros v. Villasenor et al

Filing 8

ORDER Sua Sponte DISMISSING without Prejudice First Amended Complaint for Failing to State a Claim: Plaintiff is GRANTED 45 days leave from the date this Order is filed in which to file a Second Amended Complaint which cures all the deficiencies of pleading. The Clerk of Court is directed to mail a Court approved form civil rights complaint to Plaintiff. Signed by Judge Janis L. Sammartino on 10/18/11.(All non-registered users served via U.S. Mail Service)(form sent)(lmt)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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EDUARDO PEGUEROS,
BOP #12026-298,
Plaintiff,

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vs.

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Civil No.

JUAN VILLASENOR; DAVID LUSCHE;
FARIES; FEDERAL BUREAU OF
PRISONS,

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ORDER SUA SPONTE DISMISSING
FIRST AMENDED COMPLAINT
FOR FAILING TO STATE A
CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2) & 1915A(b)

Defendants.

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I.

Procedural History

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On August 31, 2010, Plaintiff, Eduardo Pegueros, a federal inmate currently incarcerated

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at the Federal Correctional Institution (FCI) Herlong, located in Herlong, California initially

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filed this civil action on August 31, 2010 [ECF No. 1]. At the time Plaintiff initially filed this

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action he was housed at the Metropolitan Correctional Facility in San Diego, California. In

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addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a).

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On October 12, 2010, the Court granted Plaintiff’s Motion to Proceed IFP and sua sponte

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dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)( &
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1915A(b). See Oct. 12, 2010 Order at 7-8. Plaintiff was granted forty five (45) days leave to

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file an Amended Complaint in order to correct the deficiencies of pleading identified in the

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Court’s Order. Id. Plaintiff failed to comply with the Court’s time line and instead submitted

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his First Amended Complaint (“FAC”) nearly a year later on September 13, 2011 which the

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Court permitted to be filed.

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II.

Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A

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A.

Standard

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As the Court stated in its previous Order, the Prison Litigation Reform Act (“PLRA”)

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obligates the Court to review complaints filed by all persons proceeding IFP and by those, like

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Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

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adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

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probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.”

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See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte

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dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails

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to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§

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1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§

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1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

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Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte

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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. An action is

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frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319,

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324 (1989). However 28 U.S.C. §§ 1915(e)(2) and 1915A now mandate that the court reviewing

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an IFP or prisoner’s suit make and rule on its own motion to dismiss before effecting service of

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the Complaint by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 (“[S]ection

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1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint

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that fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

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(discussing 28 U.S.C. § 1915A).

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“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to the
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plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s

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duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept.,

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839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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B.

Bivens Action

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Once again Plaintiff has filed this action pursuant to 42 U.S.C. § 1983 but he names only

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Federal actors as Defendants. Accordingly, the Court will consider Plaintiff’s claims to arise

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under Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens

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established that “compensable injury to a constitutionally protected interest [by federal officials

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alleged to have acted under color of federal law] could be vindicated by a suit for damages

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invoking the general federal question jurisdiction of the federal courts [pursuant to 28 U.S.C. §

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1331].” Butz v. Economou, 438 U.S. 478, 486 (1978). “Actions under § 1983 and those under

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Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor

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under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).

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Bivens provides that “federal courts have the inherent authority to award damages against

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federal officials to compensate plaintiffs for violations of their constitutional rights.” Western

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Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). However, a Bivens

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action may only be brought against the responsible federal official in his or her individual

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capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Bivens does not

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authorize a suit against the government or its agencies for monetary relief. FDIC v. Meyer, 510

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U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); Daly-

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Murphy, 837 F.2d at 355.

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C.

Inadequate Medical Care Claims

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In his First Amended Complaint, Plaintiff seeks to sue Defendants who were alleged to

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be medical personnel at the Metropolitan Correctional Facility (“MCC”) in San Diego where

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Plaintiff was purportedly a pre-trial detainee. Based on the filing of his First Amended

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Complaint, Plaintiff appears to be currently incarcerated at the Federal Correctional Institution

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in Herlong, California following his criminal conviction.

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Because Plaintiff’s First Amended Complaint appears to relate solely to the time he was

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incarcerated at MCC as a pretrial detainee, the Eighth Amendment does not apply. Bell v

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Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Eighth Amendment scrutiny is appropriate only after

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the State has complied with the constitutional guarantees traditionally associated with criminal

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prosecutions. . . . [and] the State does not acquire the power to punish with which the Eighth

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Amendment is concerned until after it has secured a formal adjudication of guilt in accordance

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with due process of law.”); Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)

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(“Because [petitioner] had not been convicted of a crime, but had only been arrested, his rights

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derive from the due process clause rather than the Eighth Amendment’s protection against cruel

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and unusual punishment.”).

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Rather, Plaintiff’s conditions of confinement claims must be analyzed under “the more

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protective” substantive due process standard. Jones v. Blanas, 393 F.3d 918, 931-33 (9th Cir.

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2004); see also Wolfish, 441 U.S. at 538-39 (“Absent a showing of an express intent to punish

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on the part of detention facility officials, . . . if a particular condition or restriction of pretrial

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detention is reasonably related to a legitimate governmental objective, it does not, without more,

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amount to ‘punishment.’”); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)

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(“The concept of ‘substantive due process,’ semantically awkward as it may be, forbids the

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government from depriving a person of life, liberty, or property in such a way that ‘shocks the

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conscience’ or ‘interferes with rights implicit in the concept of ordered liberty.’”) (quoting

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United States v. Salerno, 481 U.S. 739, 746 (1987)). However, “the due process clause imposes,

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at a minimum, the same duty the Eighth Amendment imposes: ‘persons in custody ha(ve) the

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established right not to have officials remain deliberately indifferent’” to their needs. Gibson,

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290 F.3d at 1187 (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)); Lolli v. County

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of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Court will therefore look to Eighth

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Amendment standards to determine the minimum level of protection afforded Plaintiff.

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Plaintiff’s First Amended Complaint contains very few factual allegations. He does

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allege that he suffered from hives and a rash for an unspecified period of time. (See FAC at 3-4.)

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He further alleges that “defendants refused to properly treat his medical condition of rashes and

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hives.” (Id.)

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Where a prisoner’s Eighth Amendment claim is one of inadequate medical care, the

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prisoner must allege “acts or omissions sufficiently harmful to evidence deliberate indifference

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to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two

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elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s

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response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on

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other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A medical

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need is serious “if the failure to treat the prisoner’s condition could result in further significant

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injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting

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Estelle, 429 U.S. at 104). Indications of a serious medical need include “the presence of a

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medical condition that significantly affects an individual’s daily activities.” Id. at 1059-60. By

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establishing the existence of a serious medical need, a prisoner satisfies the objective

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requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834

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(1994).

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Plaintiff’s First Amended Complaint, once again, lacks sufficient allegations to

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demonstrate that he has a “serious” medical need. Even if Plaintiff has alleged facts sufficient

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to establish the existence of a serious medical need, he must also allege that each Defendant’s

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response to his need was deliberately indifferent. Farmer, 511 U.S. at 834. In general,

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deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere

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with a prescribed course of medical treatment, or it may be shown by the way in which prison

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medical officials provide necessary care. Hutchinson v. United States, 838 F.2d 390, 393-94

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(9th Cir. 1988). Before it can be said that a prisoner’s civil rights have been abridged with

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regard to medical care, however, “the indifference to his medical needs must be substantial.

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Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.”

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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S.

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at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

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Plaintiff offers no factual allegations other than the conclusory statement that defendants

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refused to “properly treat” his rash and hives. (FAC at 3.) Plaintiff has to provide specific

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factual allegations with regard to his interactions with Defendants, whether he received any

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treatment or how they refused to provide him with any treatment. His statement suggests that

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he has mere difference of opinion in how he should be treated. However, a difference of opinion

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between an inmate and prison medical personnel regarding appropriate medical diagnosis and

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treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d

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240, 242 (9th Cir. 1989).

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If Plaintiff is attempting to allege that there was a delay in treatment, there are no facts

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in the First Amended Complaint from which the Court can determine whether he has suffered

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any injury as a result of the Defendants alleged delay in providing treatment. See Shapley v.

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Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (a prisoner can make

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“no claim for deliberate medical indifference unless the denial was harmful.”)

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Thus, the Court finds that Plaintiff has failed to allege a deliberate indifference to serious

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medical need claim. While Plaintiff will be given the opportunity to file an Amended

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Complaint, he is, once again, cautioned that he must provide factual allegations that link an

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allegation of a constitutional violation to a specific Defendant.

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III.

CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that

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Plaintiff’s First Amended Complaint is DISMISSED WITHOUT PREJUDICE for

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failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)

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and § 1915A(b). However, Plaintiff is further GRANTED forty five (45) days leave from the

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date this Order is filed in which to file a Second Amended Complaint which cures all the

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deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself

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without reference to his previous pleading. See S.D. CAL. CIVLR 15.1. Defendants not named

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and all claims not re-alleged in the Amended Complaint will be considered waived. See King

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v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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The Clerk of Court is directed to mail a Court approved form civil rights complaint to
Plaintiff.
IT IS SO ORDERED.

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DATED: October 18, 2011
Honorable Janis L. Sammartino
United States District Judge

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