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

Filing 43

ORDER (1) Denying 39 Motion for Temporary Restraining Order; (2) Denying 28 Motion for Appointment of Counsel ; (3) Denying 34 37 Motions for Relief from Judgment pursuant to FRCP 60(b) ; and (4) Dismissing Second Amended Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). Signed by Judge Irma E. Gonzalez on 11/8/11. (All non-registered users served via U.S. Mail Service)(ecs)

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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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vs.

(2) DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 28];

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ORDER:
(1) DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER [ECF No. 39];

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

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Defendants.

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(3) DENYING MOTIONS FOR
RELIEF FROM JUDGMENT
PURSUANT TO FRCP 60(b) [ECF
Nos. 34, 37]; and
(4) DISMISSING SECOND
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.

PROCEDURAL HISTORY

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

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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. Plaintiff also filed a number of miscellaneous motions, along with four

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Motions for Temporary Restraining Order.

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The Court, once again, screened Plaintiff’s First Amended Complaint and ruled on all

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pending motions. See May 17, 2011 Order at 1-8. The Court took note of the fact that Plaintiff

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was adding new claims pertaining to allegations arising from the time Plaintiff was incarcerated

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at the Richard J. Donovan Correctional Facility (“Donovan”). Id. at 3. The Court denied

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Plaintiff’s Motion for Appointment of Counsel, denied his Motions for a Temporary Restraining

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Order and dismissed his First Amended Complaint for failing to state a claim upon which § 1983

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relief could be granted. Id. at 8. Plaintiff, once again, was granted leave to file an Amended

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Complaint in order to correct the deficiencies of pleading identified by the Court. Id.

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On August 2, 2011, Plaintiff filed his Second Amended Complaint (“SAC”), along with

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a renewed Motion for Appointment of Counsel. Plaintiff has also filed a renewed Motion for

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Temporary Restraining Order, along with two Motions for Relief from Judgment pursuant to

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FED.R.CIV.P. 60(b).

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II.

SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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

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amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons

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proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility

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[and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

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terms or conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

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practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these
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provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP

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complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which

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seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A;

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

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Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).
Eighth Amendment1 claims

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A.

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The basis of Plaintiff’s Second Amended Complaint is his allegation that jail officials and

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prison officials failed to timely provide him with medication he claims was necessary to treat

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his “arthritis anklylosing spondylitis.” (See SAC at 3-4.) Plaintiff claims that he had

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prescriptions by jail and prison doctors ordering that he receive “enbrel injections” once a week.

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(Id.) However, Plaintiff claims that there was often a one (1) to three (3) day delay in receiving

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his injections. (Id.)

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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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It appears for a portion of Plaintiff’s Second Amended Complaint he may have been a pre-trial
detainee rather than a prisoner. Thus, for a portion of the allegations, the Eighth Amendment may not
apply to him. Bell v Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Eighth Amendment scrutiny is
appropriate only after the State has complied with the constitutional guarantees traditionally associated
with criminal prosecutions. . . . [and] the State does not acquire the power to punish with which the
Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance
with due process of law.”). However, Plaintiff clearly alleges factual allegations arising after he was
convicted and for those time periods the Eighth Amendment is clearly applicable. Regardless, “the due
process clause imposes, at a minimum, the same duty the Eighth Amendment imposes: ‘persons in
custody ha(ve) the established right not to have officials remain deliberately indifferent’” to their needs.
Gibson, 290 F.3d at 1187 (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)); Lolli v. County
of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Court will therefore look to Eighth Amendment
standards to determine the minimum level of protection afforded Plaintiff for all of his claims of
inadequate medical care.
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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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Here, the chief allegation by Plaintiff is that prison and jail officials had a “pattern of

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negligence” that caused a one to three day delay in receiving his medication. (See SAC at 3.)

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First, inadequate treatment due to malpractice, or even gross negligence, does not amount to a

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constitutional violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334

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(9th Cir. 1990). Second, to the extent that Plaintiff alleges there was a delay in treatment, there

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are no facts in the Second Amended Complaint from which the Court can determine whether

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he has suffered any injury as a result of the Defendants alleged delay in providing treatment.

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See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (a

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

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Thus, Plaintiff’s cruel and unusual punishment claims must dismissed for failing to state a claim

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upon which relief can be granted.

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B.

Respondeat Superior

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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).

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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 Second 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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C.

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While not entirely clear, Plaintiff does assert some allegations that appear to be an attempt

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to state a retaliation claim. In order to properly allege a retaliation claim, Plaintiff must allege

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facts sufficient to show that: (1) he was retaliated against for exercising his constitutional rights,

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(2) the alleged retaliatory action “does not advance legitimate penological goals, such as

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preserving institutional order and discipline,” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.

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1994) (per curiam), and (3) the defendants’ actions harmed him.2 See Rhodes v. Robinson, 380

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F.3d 1183, 1131 (9th Cir. 2004) (“Our cases, in short, are clear that any retribution visited upon

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a prisoner due to his decision to engage in protected conduct is sufficient to ground a claim of

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unlawful First Amendment retaliation--whether such detriment “chills” the plaintiff’s exercise

Retaliation

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“[A] retaliation claim may assert an injury no more tangible than a chilling effect on First
Amendment rights.” Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir.2001) (emphasis original).
“Without alleging a chilling effect, a retaliation claim without allegation of other harm is not
actionable.” Id. Thus, while many plaintiffs alleging retaliation can show harm by pointing to the
“chilling effect” such acts may have had on the exercise of their First Amendment rights, “harms
entirely independent from a chilling effect can ground retaliation claims.” Rhodes, 380 F.3d at 1131.
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of his First Amendment rights or not.”); see also Resnick, 213 F.3d at 449; Hines v. Gomez, 108

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F.3d 265, 269 (9th Cir. 1997).

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Here, Plaintiff has failed to allege that Defendant’s actions failed to “advance legitimate

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penological goals,” Barnett, 31 F.3d at 815-16. In addition, Plaintiff’s claims of retaliation fail

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to provide specific factual allegations linking a Defendant’s alleged failure to promptly provide

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his medication with an action by Plaintiff. See Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937

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(2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

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Therefore, the Court must sua sponte dismiss Plaintiff’s retaliation claims for failing to state a

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claim upon which relief can be granted

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D.

Exhaustion of Administrative Remedies

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It further appears, based on the documents Plaintiff has attached to his Second Amended

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Complaint, that he may not have exhausted his claims that arose while he was incarcerated at

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Donovan.

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brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any

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jail, prison or other correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). “Once within the discretion of the district court, exhaustion

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in cases covered by § 1997e(a) is now mandatory.” Porter v. Nussle, 534 U.S. 516 (2002). “The

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‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under § 1983 may be

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entertained,” Booth v. Churner, 532 U.S. 731, 738 (2001), and “regardless of the relief offered

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through administrative procedures.”

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Woodford v. Ngo, 548 U.S. 81, 83-84 (2006) that “[p]roper exhaustion demands compliance with

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an agency’s deadlines and other critical procedural rules because no adjudicative system can

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function effectively without imposing some orderly structure on the court of its proceedings.”

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Id. at 90. The Court further held that “[proper exhaustion] means ... a prisoner must complete

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the administrative review process in accordance with the applicable procedural rules . . . as a

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precondition to bring suit in federal court.” Id.

The PLRA amended 42 U.S.C. § 1997e(a) to provide that “[n]o action shall be

Id. at 741.

Moreover, the Supreme Court held in

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The plain language of 42 U.S.C. § 1997e(a) provides that no § 1983 action “shall be

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brought . . . until such administrative remedies as are available are exhausted.” 42 U.S.C.

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§ 1997e(a) (emphasis added). The Ninth Circuit’s decision in McKinney v. Carey, 311 F.3d

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1198 (9th Cir. 2002) holds that prisoners who are incarcerated at the time they file a civil action

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which challenges the conditions of their confinement are required to exhaust “all administrative

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remedies as are available” as a mandatory precondition to suit. See McKinney, 311 F.3d at 1198;

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see also Perez v. Wis. Dep’t of Corrections, 182 F.3d 532, 534-35 (7th Cir. 1999) (“Congress

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could have written a statute making exhaustion a precondition to judgment, but it did not. The

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actual statute makes exhaustion a precondition to suit.”) (emphasis original). Section 1997e(a)

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“clearly contemplates exhaustion prior to the commencement of the action as an indispensable

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requirement. Exhaustion subsequent to the filing of the suit will not suffice.” McKinney, 311

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F.3d at 1198 (quoting Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002)).

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Plaintiff has submitted documentation of his exhaustion efforts that did not appear to be

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completed prior to filing this action. As stated above, Plaintiff must complete the exhaustion of

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his administrative remedies before he brings this action. McKinney, 311 F.3d at 1198.

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

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

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28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

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III.

MOTION FOR TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTION

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A.

Legal Standard

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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).

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B.

Scope

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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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C.

Likelihood of Success on the Merits

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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). As stated above,

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the Court has ready found Plaintiff’s claims to be deficient. Thus, he cannot meet the threshold

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burden of a likelihood of success on the merits. Moreover, the claims over which the Court has

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jurisdiction involve claims that arose in San Diego. Plaintiff is currently housed in the California

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State Prison in Lancaster, California. The Court has no jurisdiction to enter a restraining order

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against individuals who are not parties to this action. Nor can the Court issue a restraining order

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against Defendants they no longer house Plaintiff.
Accordingly, for all the above stated reasons, Plaintiff’s Motion for Temporary

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Restraining Order and Injunctive Relief is DENIED.

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IV.

MOTIONS FOR RELIEF FROM JUDGMENT PURSUANT TO Fed.R.Civ.P. 60(b)

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

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Order Rule 60(b).” [ECF Nos. 34, 37]. These Motions both stem from confusion with regard

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to Plaintiff’s filings. Plaintiff filed a Motion for Appointment of Counsel but also included a

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caption titling the document “Second Amended Complaint.” Initially Plaintiff’s Motion for

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Appointment of Counsel was stricken and an Order was entered designating the document as

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Plaintiff’s Second Amended Complaint. However, Plaintiff then filed his actual “Second

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Amended Complaint” and the Court corrected the previous Order and filed Plaintiff’s Motion

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for Appointment of Counsel. Therefore, Plaintiff’s requests in his two Motions for Relief from

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Judgment are DENIED as moot.

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V.

MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff seeks counsel in this matter on the grounds that he has a mental impairment. The

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Constitution provides no right to appointment of counsel in a civil case, however, unless an

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indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social

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Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are

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granted discretion to appoint counsel for indigent persons. This discretion may be exercised

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only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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“A finding of exceptional circumstances requires an evaluation of both the ‘likelihood of success

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on the merits and the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved.’ Neither of these issues is dispositive and both must be

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viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986)).

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While Plaintiff alleges he has a mental impairment, he could articulate his claims well

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enough for the Court to understand that underlying causes of action he seeks to bring. However,

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it is clear to the Court that he does not have a likelihood of success on the merits as set forth

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above.

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administrative grievances prior to bringing these claims and the appointment of counsel could

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not assist him with that procedural requirement at this stage of the proceedings.

Moreover, as the Court noted, Plaintiff may not have properly exhausted his

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Therefore, the Court denies Plaintiff’s request without prejudice, as neither the interests

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of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere

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

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VI.

CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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Plaintiff’s Motion for Temporary Restraining Order [ECF No. 39], Motions for

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Relief from Judgment [ECF No. 34, 37], and Motion to Appoint Counsel [ECF No. 28] are

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DENIED without prejudice.

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IT IS FURTHER ORDERED that:
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Plaintiff’s Second Amended Complaint [ECF No. 31] is DISMISSED without

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prejudice for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(b) and § 1915A(b). The Court finds further amendment would be futile. See Cahill

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v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an

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abuse of discretion where further amendment would be futile); see also Robinson v. California

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Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) (“Since plaintiff has not, and

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cannot, state a claim containing an arguable basis in law, this action should be dismissed without

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leave to amend; any amendment would be futile.”) (citing Newland v. Dalton, 81 F.3d 904, 907

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(9th Cir. 1996)).

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IT IS SO ORDERED.
DATED: November 8, 2011

_________________________________________
HON. IRMA E. GONZALEZ, Chief Judge
United States District Court

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