In re Michael Williams

Filing 10

ORDER: (1) Granting Plaintiff's Motion To Proceed In Forma Pauperis, Imposing No Partial Filing Fee And Garnisidng $350 Balance From Prisoner's Trust Account Pursuant To 28 U.S.C. Section 1915(a) (Doc. 9 ); (2) DISMISSING First Amende d Complaint For Failing To State A Claim Pursuant To 28 U.S.C. Sections 1915(e)(2)(B) And 1915A(b): The Secretary CDCR, or his designee, shall collect from Plaintiff's prison trust account the $350 balance of the filing fee owed in this cas e by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S. C. Section 1915(b)(2). 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 noted. Signed by Judge William Q. Hayes on 7/25/2012. (All non-registered users served via U.S. Mail Service; per Order, a blank Section 1983 Second Amended Complaint form also was mailed to Plaintiff; Order electronically transmitted to Matthew Cate, Secretary CDCR.) (mdc)

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FILED'

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·JUl 25 2012

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL WILLIAMS,
CDCR #T-30101,

Civil No.

ORDER:

Plaintiff,

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(1) GRANTING PLAINTIFF'S
MOTION TO PROCEED IN
FORMA PAUPERIS, IMPOSING
NO PARTIAL FILING FEE AND
GARNISIDNG $ 350 BALANCE
FROM PRISONER'S TRUST
ACCOUNT PURSUANT
TO 28 U.S.C. § 1915(a)
[ECF No.9];

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vs.

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DR. A SANGHA' JOHN DOE, Director of
CDCR; JOHN DOE, Director of Corrections
Corporation of America; JANE DOE; JOHN
DOES 1-50, Officers of Northfork
Correctional Facility,

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

Defendants.

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Michael Williams ("Plaintiff'), a state prisoner currently incarcerated at Centinela State

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pursuantt042 U.S.C. § 1983 in the Northern District of California. On June 13,2012, United

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States District Judge Yvonne Gonzalez Rogers determined venue was proper in the Southern

27 District of California and transferred the matter to this Court. [ECF No.4].

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Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead he

2 has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF
3 No.9]. In addition, Plaintiffhas filed a First Amended Complaint ("FAC"). [ECF No.7.]
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MOTION TO PROCEED IFP

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All parties instituting any civil action, suit or proceeding in a district court ofthe United

7 States, except an application for writ of habeas corpus, must pay a filing fee of$350. See 28
8 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire fee

9 only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to

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proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their

12 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d
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844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a

15 prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account
16 statement (or institutional equivalent) for the prisoner for the six-month period immediately
17 preceding the filing ofthe complaint." 28 U.S.C. § 1915(a)(2);Andrews v. King, 398 F.3d 1113,
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1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial

19 payment of20% of (a) the average monthly deposits in the account for the past six months, or
20 (b) the average monthly balance in the account for the past six months, whichever is greater,
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unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(h)(4). The

22 institution having custody ofthe prisoner must collect subsequent payments, assessed at 20% of
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the preceding month's income, in any month in which the prisoner's account exceeds $10, and

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forward those payments to the Court until the entire filing fee is paid.

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§ 1915(b)(2).

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See 28 U.S.C.

The Court finds that Plaintiff has no available funds from which to pay filing fees at this

27 time. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited
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from bringing a civil action or appealing a civil action or criminal judgment for the reason that

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1 the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor,
2 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing
3 dismissal of a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds
4 available to him when payment is ordered."). Therefore, the Court GRANTS Plaintiff's Motion
5 to Proceed IFP [ECF No.9] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(l).
6 However, the entire $350 balance of the filing fees mandated shall be collected and forwarded
7 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.
8 § 1915(b)(l).

III.

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SCREENING PURSUANT TO 28 U.S.C. §§

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1915(e)(2) & 1915A(b)

The PLRA also obligates the Court to review complaints filed by all persons proceeding

12 IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused
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of, sentenced for, or adjudicated delinquent for, violations of criminal law or the tenns or

14 conditions of parole, probation, pretrial release, or diversionary program," "as soon as
15 practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

Under these

16 provisions ofthe PLRA, the Court must sua sponte dismiss complaints, or any portions thereof,
17 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

19 27 (9th Cir. 2000)(en banc)(§ 1915(e)(2»; Resnickv. Hayes, 213 F.3d 443,446 (9th Cir. 2000)
20 (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing
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§ 1915A).

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"[W]hen detennining 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

24 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.

28 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a

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1 pro se civil rights complaint, the court may not "supply essential elements of claims that were

2 not initially pled." Ivey v. Board ofRegents ofthe University ofAlaska, 673 F.2d 266, 268 (9th
3 Cir. 1982). "Vague and conclusory allegations ofofficial participation in civil rights violations
4 are not sufficient to withstand a motion to dismiss." Id.
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A.

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Section 1983 imposes two essential proof requirement~ upon a claimant: (1) that a person

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acting under color ofstate law committed the conduct at issue, and (2) that the conduct deprived

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the claimant of some right, privilege, or immunity protected by the Constitution or laws ofthe

42 U.S.C. § 1983 Liability

9 United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122
10 (2004); Haygoodv. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

Eighth Amendment claims

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B.

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Plaintiff alleges a number of Eighth Amendment violations.

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Plaintiff, an inmate

incarcerated by the California Department ofCorrections and Rehabilitation ("CDCR"), was sent

14 to be housed in North Fork Correctional Facility, an out of state facility, in November of2010
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due to the overcrowding of prisons in California. (See FAC at 3.)

On October 11, 2011,

16 Plaintiff alleges a riot broke out in the prison and he was "violently attacked by other inmates"
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with a "metal baseball bat." (Id.) Plaintiff alleges he suffered a serious brain injury and was

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returned to Centinela State Prison in California to receive medical treatment. (Id.)

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The Eighth Amendment's prohibition against cruel and unusual punishment requires that

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prison officials act reasonably in protecting inmates from violence suffered at the hands ofother

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prisoners. Farmer, 511 U.S. at 833; Berg v. Kincheloe, 794 F.2d 457,459 (9th Cir. 1986).

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However, to state a failure to protect claim, Plaintiff must allege facts sufficient to show that

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Defendants were "deliberately indifferent," that they were aware of, but nevertheless consciously

24 disregarded an excessive risk to his health or safety. Farmer, 511 U.S. at 834. If the official
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is not alleged to have actual knowledge of a serious risk of harm, but is alleged to be aware of

26 facts from which the inference could be drawn that a substantial risk of serious harm exists, the
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plaintiff must further allege that the official "also dr[ew] the inference." Id. at 837; Wilson v.

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Seiter, 501 U.S. 294, 303 (1991).

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Here, while Plaintiff identifies a serious risk to this safety, he fails to adequately allege

2 with any specificity how the individual Defendants would have known that there was a serious
3 risk of harm. Plaintiff clearly alleges that he was assaulted by other inmates but he does not
4 allege any facts that would demonstrate that either the Director ofthe CDCR or the Director of
5 the North Folk Correctional Facility had any knowledge that another inmate would cause him
6 serious harm. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility
7 when the plaintiff pleads factual content that allows the court to draw the reasonable inference
8 that the defendant is liable for the misconduct alleged.").
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Accordingly, as currently plead, Plaintiffhas failed to show that any Defendant acted with

10 conscious disregard to a risk to his safety. See Farmer, 511 U.S. at 837; Johnson v. Duffy, 588
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F.2d 740, 743 (9th Cir. 1978) (to establish a deprivation of a constitutional right by any

12 particular individual, the plaintiff must allege that the individual, in acting or failing to act, was
13 the actual and proximate cause of his injury).

Thus, Plaintiffs Eighth Amendment failure to

14 protect claims are dismissed for failing to state a claim upon which relief can be granted.
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As to Plaintiffs claims with respect to his medical care issues while housed at Centinela

16 State Prison, Plaintiff alleges insufficient facts to find that he has stated an Eighth Amendment
17 deliberate indifference claim as to Defendant Sangha. Where an inmate's claim is one of
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inadequate medical care, the inmate must allege "acts or omissions sufficiently harmful to

19 evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106
20 (1976). Such a claim has two elements: "the seriousness ofthe prisoner's medical need and the
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nature ofthe defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1991),overruledonothergroundsbyWMXTechs.,Inc. v.Miller, 104F.3d 1133, 1136 (9th

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Cir. 1997). A medical need is serious "ifthe failure to treat the prisoner's condition could result

24 in further significant injury or the 'unnecessary and wanton infliction ofpain. '" McGuckin, 974
25 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications ofa serious medical need include
26 "the presence of a medical condition that significantly affects an individual's daily activities."
27 Id. at 1059-60. By establishing the existence ofa serious medical need, an inmate satisfies the

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objective requirement for proving an Eighth Amendment violation. Farmer, 511 U.S. at 834.

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In general, deliberate indifference may be shown when prison officials deny, delay, or

2 intentionally interfere with a prescribed course ofmedical treatment, or it may be shown by the
3 way in which prison medical officials provide necessary care. Hutchinson v. United States, 838

4 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a inmate's civil rights have been
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abridged with regard to medical care, however, "the indifference to his medical needs must be

6 substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this
7 cause of action." Broughton v. Cutter Laboratories, 622 F .2d 458, 460 (9th Cir. 1980) (citing

8 Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
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While Plaintiff alleges a serious medical need, he fails to allege facts sufficient to state

lOa deliberate indifference claim as to Defendant Sangha. Plaintiff admits that he has received
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medical examinations, as well as pain medication. (See FAC at 4-5.) However, his only

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allegation specific to Dr. Sangha is the allegation that "Dr. A. Sangha is responsible for allowing

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me to go see a neurologist and what care I get." (/d.) These facts, as currently stated, do not rise

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to the level of "deliberate indifference."

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Thus, Plaintiff's Eighth Amendment inadequate medical care claims are dismissed for
failing to state a claim upon which relief can be granted.

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III.

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CONCLUSION AND ORDER

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Good cause appearing therefor, IT IS HEREBY ORDERED that:

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1.

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Plaintiffs Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No.9] is

GRANTED.
2.

The Secretary of California Department of Corrections and Rehabilitation, or his

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designee, shall collect from Plaintiffs prison trust account the $350 balance ofthe filing fee owed in this

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case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of

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the preceding month's income and forward payments to the Clerk ofthe Court each time the amount in

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the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO TillS ACTION.

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3.

The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,

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Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,

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Sacramento, California 95814.

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IT IS FURTHER ORDERED that:

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4.

Plaintiff's Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

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§§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is 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 deficiencies

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of pleading noted above. Plaintiffs Amended Complaint must be complete in itself without reference

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to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims notre­

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alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d

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565,567 (9th Cir. 1987). Further, if Plaintiff's Amended Complaint fails to state a claim upon which

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relief may be granted, it may be dismissed without further leave to amend and may hereafter be

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counted as a "strike" under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th

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Cir. 1996).

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IT IS SO ORDERED.

The Clerk of Court is directed to mail a form § 1983 complaint to Plaintiff.

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DATED:

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