Dunsmore v. San Diego County Sheriff's Department et al

Filing 24

ORDER: (1) Denying without prejudice Motions for Temporary Restraining Order 8 , 10 , 16 , 20 ; (2) Denying without prejudice Motion for Appointment of Counsel 14 ; (3) Denying without prejudice Motions for Request of Waiver of Rules; relief from J udgment and for permission of removal of exhibits 12 - 15 ; and (4) Dismissing First Amended Complaint without prejudice for failing to state a claim pursuant to 28 U.S.C. 1915(e)(2)(B) & 1915A(b). Plaintiff is Granted forty-five (45) days leave from the date this Order is filed in which to file a Second Amended Complaint. Signed by Judge Irma E. Gonzalez on 5/17/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARRYL LEE DUNSMORE,
CDCR # AD-6237,

Civil No.
Plaintiff,

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ORDER:
(1) DENYING MOTIONS FOR
TEMPORARY RESTRAINING
ORDER [ECF Nos. 8, 10, 16, 20];

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(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 14];

vs.

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11-0083 IEG (WVG)

SAN DIEGO COUNTY SHERIFF’S DEP’T,
et al.

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Defendants.

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(3) DENYING MOTIONS FOR
REQUEST OF WAIVER OF RULES;
RELIEF FROM JUDGMENT AND
FOR PERMISSION OF REMOVAL
OF EXHIBITS [ECF Nos. 12-15]; and
(4) DISMISSING FIRST AMENDED
COMPLAINT
FOR FAILING TO STATE
A CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

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I.

P ROCEDURAL H ISTORY
On January 14, 2011, Plaintiff, a state inmate currently incarcerated at the California State

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Prison located in Lancaster, California, and proceeding pro se, filed a civil rights Complaint

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pursuant to 42 U.S.C. § 1983. In his original Complaint, Plaintiff alleges that his constitutional

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rights were violated when he was housed in the San Diego Central Jail. In addition, Plaintiff

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filed a Motion to Proceed In Forma Pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). The Court

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granted Plaintiff’s Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to

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state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). See Mar. 1, 2011 Order at

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5-6.

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deficiencies of pleading identified by the Court. Id. Plaintiff filed his First Amended Complaint

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on April 8, 2011. In addition, Plaintiff has filed a number of miscellaneous motions, along with

Plaintiff was granted leave to file an Amended Complaint in order to correct the

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four Motions for Temporary Restraining Order.

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II.

S CREENING P URSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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The Prison Litigation Reform Act (“PLRA”)’s amendments to 28 U.S.C. § 1915 also

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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)(B) and 1915A(b). Under these provisions, the Court must sua

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sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof,

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which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who

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are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-

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27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir.

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2000) (§ 1915A).

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A.

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As a preliminary matter, the Court finds that Plaintiff’s First Amended Complaint fails

Rule 8

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to comply with Rule 8.

Specifically, Rule 8 provides that in order to state a claim for relief in

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a pleading it must contain “a short and plain statement of the grounds for the court’s

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jurisdiction” and “a short and plain statement of the claim showing that the pleader is entitled

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to relief.” F ED.R.C IV.P. 8(a)(1) & (2). Plaintiff’s First Amended Complaint is rambling and

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nearly incomprehensible. If Plaintiff chooses to file an Amended Complaint, he must not only

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comply with Rule 8, he must abide by S.D. C IVL R 8.2(a) (providing that complaints by prisoners

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must use the court approved form and may attach no more than fifteen (15) additional pages.)

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B.

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In Plaintiff’s original Complaint, he alleges that he was denied adequate medical care by

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jail officials while he was housed under the custody of the San Diego County Sheriff’s

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Department. Plaintiff, in filing a First Amended Complaint, appears to also claim that he was

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later convicted and denied adequate medical care by prison officials while housed at the Richard

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J. Donovan Correctional Facility (“RJD”).

Eighth Amendment claims

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In order to assert a claim for inadequate medical care, Plaintiff must allege facts which

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are sufficient to show that each person sued was “deliberately indifferent to his serious medical

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needs.” Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106

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(1976). Officials must purposefully ignore or fail to respond to Plaintiff’s pain or medical needs;

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neither an inadvertent failure to provide adequate medical care, nor mere negligence or medical

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malpractice constitutes a constitutional violation. Estelle, 429 U.S. at 105-06.

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Thus, to state a claim, Plaintiff must allege facts sufficient to show both: (1) an

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objectively “serious” medical need, i.e., one that a reasonable doctor would think worthy of

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comment, one which significantly affects his daily activities, or one which is chronic and

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accompanied by substantial pain, see Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994);

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and (2) a subjective, and “sufficiently culpable” state of mind on the part of each individual

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Defendant. See Wilson v. Seiter, 501 U.S. 294, 302 (1991).

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Plaintiff’s First Amended Complaint contains very few factual allegations and fails to

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identify any of the Defendants who are named in the caption in the body of the First Amended

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Complaint.

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Spondylitis” for which he has not received adequate treatment. (FAC at 11.) However, once

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again, Plaintiff fails to identify with any specificity how any individual Defendants knew of his

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“serious” medical, yet deliberately disregarded his need for appropriate. See Estelle, 429 U.S.

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at 105-06. There are no facts related to any of the named fifty six (56) Defendants in the body

Plaintiff does allege that he “suffers from a rare form of arthritis Ankylosing

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of the First Amended Complaint. Moreover, Plaintiff has not set forth which facts pertain to the

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time he was in the custody of the San Diego County Sheriff’s Department and which facts relate

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to his next place of incarceration, the Richard J. Donovan Correctional Facility.

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It further appears that Plaintiff has a disagreement with prison officials as to which

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medication is appropriate for his medical condition. However, mere “difference of medical

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opinion” between a prisoner and his physicians concerning the appropriate course of treatment

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is “insufficient, as a matter of law, to establish deliberate indifference.” Jackson v. McIntosh,

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90 F.3d 330, 332 (9th Cir. 1996). Instead, to allege deliberate indifference regarding choices

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between alternative courses of treatment, a prisoner must allege that the chosen course of

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treatment “was medically unacceptable under the circumstances,” and was chosen “in conscious

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disregard of an excessive risk to [the prisoner’s] health.” Id. (citation omitted). Plaintiff has

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failed to allege any facts from which the Court could find that Defendants acted with deliberate

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indifference to his serious medical needs. Thus, Plaintiff’s cruel and unusual punishment claims

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must dismissed for failing to state a claim upon which relief can be granted.

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C.

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In addition, Plaintiff names San Diego County Sheriffs Kolender and Gore as parties,

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along with Warden George Neotti but fails to assert any specific factual allegations pertaining

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to either of these Defendants. There is no respondeat superior liability under 42 U.S.C. § 1983.

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Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, “[t]he inquiry into

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causation must be individualized and focus on the duties and responsibilities of each individual

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defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer

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v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71

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(1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each

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individual Defendant which have a direct causal connection to the constitutional violation at

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issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989).

Respondeat Superior

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Supervisory officials may only be held liable for the allegedly unconstitutional violations

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of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what extent they

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personally participated in or directed a subordinate’s actions, and (2) in either acting or failing

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to act, they were an actual and proximate cause of the deprivation of Plaintiff’s constitutional

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rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however,

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Plaintiff’s First Amended Complaint fails to set forth facts which might be liberally construed

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to support an individualized constitutional claim against Gore, Kolender or Neotti.

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Plaintiff also names the San Diego County Sheriff’s Department as a Defendant in this

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matter. However, an agency or department of a municipal entity is not a proper defendant under

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§ 1983. Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Rather, the

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County itself is the proper defendant. See id. “[A] municipality cannot be held liable solely

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because it employs a tortfeasor – or, in other words, a municipality cannot be held liable under

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§ 1983 on a respondeat superior theory.” Monell v. Department of Social Services, 436 U.S.

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658, 691 (1978).

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D.

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Finally, Plaintiff names the Richard J. Donovan Correctional Facility which is part of the

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California Department of Corrections and Rehabilitation as a Defendant. The State of California

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and the California Department of Corrections and Rehabilitation, as an agency of the State of

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California, are not “persons” subject to suit and are instead, entitled to absolute immunity from

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monetary damages actions under the Eleventh Amendment. See Seminole Tribe of Florida v.

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Florida, 517 U.S. 44, 53-54 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S.

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89, 106 (1984); see also Hale v. State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993)

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(holding that a state department of corrections is not a “person” within the meaning of § 1983).

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In order to state a claim under § 1983, Plaintiff must identify a “person” who, acting under

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color of state law, deprived him of a right guaranteed under the Constitution or a federal statute.

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See 42 U.S.C. § 1983. Therefore, Plaintiff’s claims for monetary damages against the State of

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California and R.J. Donovan Correctional Facility are dismissed with prejudice and without

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leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).

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Eleventh Amendment

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For all these reasons, the Court finds that Plaintiff’s First Amended Complaint must be

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dismissed sua sponte for failing to state a claim upon which relief can be granted and for seeking

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monetary damages against an immune defendant pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

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and 1915A(b). See Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446 n.1.

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III.

M OTIONS FOR T EMPORARY R ESTRAINING O RDERS AND P RELIMINARY I NJUNCTION

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A.

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In order to demonstrate the need for preliminary injunctive relief a party must show: “1)

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a strong likelihood of success on the merits, 2) the possibility of irreparable injury to plaintiff

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if preliminary relief is not granted, 3) a balance of hardships favoring the plaintiff, and 4)

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advancement of the public interest (in certain cases).” Save Our Sonoran, Inc. v. Flowers, 408

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F.3d 1113, 1120 (9th Cir. 2005). Where a party demonstrates that a public interest is involved,

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a “district court must also examine whether the public interest favors the plaintiff.” Fund for

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Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992).

Legal Standard

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B.

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In determining the scope of injunctive relief that interferes with the affairs of a state

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agency, the court must ensure, out of federalism concerns, that the injunction “heel[s] close to

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the identified violation,” Gilmore v. California, 220 F.3d 987, 1005 (9th Cir. 2000) (citation

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omitted), is not overly “intrusive and unworkable ... [and] would [not] require for its

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enforcement the continuous supervision by the federal court over the conduct of [state officers].”

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O’Shea, 414 U.S. at 500, 501; see also Armstrong v. Davis, 275 F.3d 849, 872 (9th Cir. 2001).

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As the Ninth Circuit has noted, these concerns have been codified in the Prison Litigation

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Reform Act, 18 U.S.C. § 3626 (PLRA). See Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir.

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2001) (PLRA “has not substantially changed the threshold findings and standards required to

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justify an injunction.”). The PLRA requires that prospective injunctive relief against a state

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prison system be “narrowly drawn, extend[ ] no further than necessary to correct the violation

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of the Federal right, and [be] the least intrusive means necessary to correct the violation of the

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Federal right.” Id. at § 3626(a)(1); Armstrong, 275 F.3d at 872.

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Scope

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C.

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Under the first test for a preliminary injunction, the moving party must demonstrate “high

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probability of success on the merits” of the case. See Associated Gen. Contractors of California,

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Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991). While Plaintiff’s

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Motion is far from clear, it appears that he is seeking relief based on the alleged constitutional

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claims which the Court has already found to be deficient as set forth above. Thus, he cannot

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meet the threshold burden of a likelihood of success on the merits.

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Likelihood of Success on the Merits

Accordingly, for all the above stated reasons, Plaintiff’s Motions for Temporary
Restraining Order and Injunctive Relief are DENIED.

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Plaintiff has also filed a Motion that he entitles “Motion for Relief from Judgment or

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Order Rule 60(b).” [ECF No. 13]. In this Motion, Plaintiff does not appear to be seeking relief

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from a Court’s Order or Judgment which is the purpose of F ED.R.C IV.P. 60(b) but rather it

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appears to be a fifth Motion for Temporary Restraining Order. Thus, for all the above stated

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reasons, this Motion is DENIED.

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IV.

M OTION FOR R EQUEST OF W AIVER OF R ULES

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On April 4, 2011, Plaintiff filed a “Motion for Request of Waiver of Rules” [ECF No.

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12]. It is not entirely clear what Plaintiff is seeking in this Motion. Plaintiff appears to indicate

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that he is having difficulty litigating this matter. Thus, the Court construes this as a request for

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appointment of counsel. The Constitution provides no right to appointment of counsel in a civil

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case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation.

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Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C.

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§ 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This

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discretion may be exercised only under “exceptional circumstances.” Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation

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of both the ‘likelihood of success on the merits and the ability of the plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues involved.’ Neither of these issues is

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dispositive and both must be viewed together before reaching a decision.” Id. (quoting Wilborn

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v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice

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nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,

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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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V.

C ONCLUSION AND O RDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s Motions for Temporary Restraining Order [ECF No. 8, 10, 16, 20],

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Motion for Relief from Judgment [ECF No. 13], Motion to Appoint Counsel [ECF No. 14],

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Motion for Permission of Removal of Exhibits [ECF no. 15] and Motion for Request of Waiver

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of Rules [ECF No. 12] are DENIED without prejudice.

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IT IS FURTHER ORDERED that:

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2.

Plaintiff’s First Amended Complaint is DISMISSED without prejudice for failing

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to state a claim upon which relief may be granted and for seeking monetary damages against an

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immune defendant. See 28 U.S.C. § 1915(e)(2) & § 1915A(b).

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3.

Plaintiff is GRANTED forty-five (45) days leave from the date this Order is filed

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in which to file a Second Amended Complaint which cures all the deficiencies of pleading noted

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above. Plaintiff’s Amended Complaint must be complete in itself without reference to his

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original Complaint. See S.D. C AL. C IVLR 15.1. Defendants not named and all claims not re-

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alleged in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565,

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567 (9th Cir. 1987). If Plaintiff fails to file an Amended Complaint within 45 days, this action

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shall remain dismissed without further Order by the Court.

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DATED: May 17, 2011

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IRMA E. GONZALEZ, Chief Judge
United States District Court

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