Taylor v. Taylor et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Plaintiff� 39;s Complaint is dismissed without prejudice for failing to state a claim and for seeking monetary damages against immune defendants pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). Plaintiff is granted forty five days leave from the d ate this Order is entered into the Court's docket in which to file a First Amended Complaint. (Order electronically transmitted to Secretary of CDCR). Signed by Judge Larry Alan Burns on 9/25/14. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL DOUGLAS TAYLOR,
CDCR #E-85025,

Civil No.

Plaintiff,

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vs.

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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED
IN FORMA PAUPERIS
(ECF Doc. No. 2)

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14cv2190 LAB (BLM)

AND
C. TAYLOR, Correctional Counselor I;
K. SMITH, Correctional Counselor II;
CALIFORNIA DEP’T OF
CORRECTIONS AND
REHABILITATION; JOHN DOES 1
THROUGH 10; JANE DOES 1
THROUGH 10,
Defendants.

(2) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM AND FOR
SEEKING MONEY DAMAGES
AGAINST IMMUNE
DEFENDANT PURSUANT TO 28
U.S.C. §§ 1915(e)(2) AND
1915A(b)

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Michael Douglas Taylor (“Plaintiff”), currently incarcerated at Richard J. Donovan

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Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed

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this civil action rights action.

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//

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Plaintiff has not prepaid the civil filing and administrative fees required by 28

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U.S.C. § 1914(a); instead, he has submitted a Motion to Proceed In Forma Pauperis

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(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2).

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I.

PLAINTIFF’S MOTION TO PROCEED IFP

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee. See

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28 U.S.C. § 1914(a).1 An action may proceed despite the plaintiff’s failure to prepay the

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entire fee only if he 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, if the plaintiff is a

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prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay

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the entire fee in installments, regardless of whether his action is ultimately dismissed.

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See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.

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2002).

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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

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(“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy

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of the trust fund account statement (or institutional equivalent) for . . . the six-month

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period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court must assess an initial payment of 20% of (a) the average monthly

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deposits in the account for the past six months, or (b) the average monthly balance in the

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account for the past six months, whichever is greater, unless the prisoner has no assets.

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See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of

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the prisoner must collect subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which the prisoner’s account exceeds $10, and forward

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//

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In addition to the $350 statutory fee, all parties filing civil actions on or after May 1,
2013, must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a), (b); Judicial
Conference Schedule of Fees, District Court Misc. Fee Schedule (eff. May 1, 2013). However,
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Id.
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those payments to the Court until the entire filing fee is paid.

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See 28 U.S.C.

§ 1915(b)(2).

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In support of his IFP application, Plaintiff has submitted the certified copies of his

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trust account statements required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2.

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Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statements,

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as well as the certificate of funds in his trust account at RJD verifying his account history

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and available balances. Plaintiff’s statements show an available balance of zero in his

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account at the time it was submitted to the Court for filing. Based on this financial

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information, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 2)

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and assesses no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1).

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However, the Secretary of the California Department of Corrections and

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Rehabilitation, or his designee, shall collect the $350 filing fee required by 28 U.S.C.

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§ 1914(a) and forward it in installments to the Court pursuant 28 U.S.C. § 1915(b)(1)

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and the directions set forth below. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no

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event shall a prisoner be prohibited from bringing a civil action or appealing a civil

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action or criminal judgment for the reason that the prisoner has no assets and no means

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by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28

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U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

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based solely on a “failure to pay ... due to the lack of funds available to him when

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payment is ordered.”).

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II.

INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) AND 1915A(b)(1)

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Notwithstanding IFP status or the payment of any filing fees, the PLRA also

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

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

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sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

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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) and 1915A(b). Under these

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provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions
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thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from

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

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

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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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

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true all allegations of material fact and must construe those facts in the light most

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favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also

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Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)

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“parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while

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a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted

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inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal

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quotation marks and citation omitted). Thus, while the court “ha[s] an obligation where

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the petitioner is pro se, particularly in civil rights cases, to construe the pleadings

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liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d

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338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th

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Cir. 1985)), it may not, in so doing, “supply essential elements of claims that were not

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initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268

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(9th Cir. 1982). “Vague and conclusory allegations of official participation in civil

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rights violations” are simply not “sufficient to withstand a motion to dismiss.” Id.

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A.

42 U.S.C. § 1983

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“Section 1983 creates a private right of action against individuals who, acting

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under color of state law, violate federal constitutional or statutory rights.” Devereaux

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v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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//
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that the deprivation was committed by a person acting under color of state law.” Tsao

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v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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B.

Improper Defendant

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As an initial matter, the Court finds that to the extent Plaintiff names the California

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Department of Corrections and Rehabilitation (“CDCR”) as a Defendant, his claims must

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be dismissed sua sponte pursuant to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for

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failing to state a claim and for seeking damages against a defendant who is immune. The

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State of California’s Department of Corrections and Rehabilitation and any state prison,

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like RJD, correctional agency, sub-division, or department under its jurisdiction, are not

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“persons” subject to suit under § 1983. Hale v. State of Arizona, 993 F.2d 1387, 1398-

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99 (9th Cir. 1993) (holding that a state department of corrections is an arm of the state,

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and thus, not a “person” within the meaning of § 1983). And if by naming the CDCR as

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a party, Plaintiff really seeks to sue the State of California itself, his claims are clearly

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barred by the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978)

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(per curiam) (“There can be no doubt . . . that [a] suit against the State and its Board of

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Corrections is barred by the Eleventh Amendment, unless [the State] has consented to

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the filing of such a suit.”).

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Therefore, to the extent Plaintiff seeks monetary damages against the CDCR, or

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any relief against the State of California itself, his Complaint is dismissed pursuant to 28

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U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. § 1915A(b)(1) & (2).

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C.

Inadequate Medical Care Claims

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Plaintiff seeks to hold his correctional counselors liable in this action because he

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alleges that they attempted to transfer him to a different prison, which he claims

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interfered with his medical treatment. See Compl. at 23-26.

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As to his medical care claims, only “deliberate indifference to a serious illness or

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injury states a cause of action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 105

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(1976). First, Plaintiff must allege a “serious medical need” by demonstrating that

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“failure to treat [his] condition could result in further significant injury or the
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‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d

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1133 (9th Cir. 1997) (en banc) (citing Estelle, 429 U.S. at 104). The “existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment

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or treatment; the presence of a medical condition that significantly affects an individual’s

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daily activities; or the existence of chronic and substantial pain are examples of

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indications that a prisoner has a ‘serious’ need for medical treatment.” Id. at 1059-60.

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Here, Plaintiff contends he suffers from a serious heart condition. See Compl. at

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7. Thus, the Court will assume, for purposes of screening pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A, that he has a serious medical need. However, even assuming

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Plaintiff’s medical condition and/or pain was sufficiently objectively serious to invoke

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Eighth Amendment protection, he must also include in his pleading enough factual

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content to show that Defendant Taylor’s and Defendant Smith’s actions were

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“deliberately indifferent” to his needs. ” McGuckin, 974 F.2d at 1060; see also Jett v.

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Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “This second prong–defendant’s response

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to the need was deliberately indifferent–is satisfied by showing (a) a purposeful act or

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failure to respond to [the] prisoner’s pain or possible medical need and (b) harm caused

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by the indifference.” Jett, 439 F.3d at 1096. “Deliberate indifference is a high legal

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standard,” and claims of medical malpractice or negligence are insufficient to establish

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a constitutional deprivation. Simmons v. Navajo County, 609 F.3d 1011, 1019 (9th Cir.

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2010) (citing Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)).

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As currently pleaded, Plaintiff’s Complaint alleges that Defendants recommended

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Plaintiff for a transfer from RJD to another prison. Plaintiff alleges that this transfer

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would have interfered with his medical treatment. However, Plaintiff also concedes that

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the transfer never took place and he remains at RJD.2

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//

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Plaintiff’s current place of incarceration remains RJD. See http://inmatelocator.cdcr.ca.gov/
(last visited Sept. 24, 2014.)
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“Deliberate indifference” is evidenced only when a prisoner can show that the

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official he seeks to hold liable “kn[ew] of and disregard[ed] an excessive risk to inmate

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health and safety; the official must be both aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exist[ed], and he must also [have]

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draw[n] the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Specifically,

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Plaintiff must allege “factual content,” Iqbal, 556 U.S. at 678, which demonstrates “(a)

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a purposeful act or failure to respond to [his] pain or possible medical need, and (b) harm

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caused by the indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 ((9th Cir. 2012)

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(citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective

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recklessness, which entails more than ordinary lack of due care. Snow v. McDaniel, 681

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F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); Wilhelm, 680 F.3d

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at 1122.

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Here, while Plaintiff alleges that some of his medication and treatment was

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discontinued, he alleges that this was the decision of doctors who are not parties to this

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action. There are no allegations that either Defendant Taylor or Defendant Smith played

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any role in the decisions made by Plaintiff’s treating physicians in their recommended

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course of action. While Plaintiff may not have agreed with the treatment provided by his

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physicians, his disagreement, without more does not provide sufficient “factual content”

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to plausibly suggest that either Taylor or Smith acted with deliberate indifference. Iqbal,

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556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,’ but

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it ask for more than the sheer possibility that a defendant has acted unlawfully,”). “A

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difference of opinion between a physician and the prisoner–or between medical

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professionals–concerning what medical care is appropriate does not amount to deliberate

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indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23. Rather,

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Plaintiff “must show that the course of treatment the doctors chose was medically

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unacceptable under the circumstances and that the defendants chose this course in

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conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing
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Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)) (internal quotation marks

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omitted).

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Accordingly, the Court finds that Plaintiff has failed to state an Eighth Amendment

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inadequate medical care claim against either Defendant Taylor or Smith, and that these

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claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See

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Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.

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D.

Conspiracy claims

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It appears that Plaintiff is attempting to allege a conspiracy claim. See Compl. at

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31. However, Plaintiff has failed to state a claim upon which relief can be granted

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pursuant to 42 U.S.C. § 1985(3). Under § 1985(3), “a complaint must allege (1) a

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conspiracy, (2) to deprive any person or a class of persons of the equal protection of the

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laws, or of equal privileges and immunities under the laws, (3) an act by one of the

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conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage

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or a deprivation of any right or privilege of a citizen of the United States.” Id. Here,

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Plaintiff’s Complaint contains no facts to plausibly suggest the existence of any “meeting

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of the minds” between the named defendants to violate his rights; nor does it allege he

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was denied adequate medical care based on any “racial, or perhaps otherwise class-based,

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invidiously discriminatory animus.” RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045,

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1056 (9th Cir. 2002). Therefore, Plaintiff has also failed to state a claim upon which

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1985(3) relief may be granted.

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Because Plaintiff is proceeding pro se, however, the Court having now provided

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him with “notice of the deficiencies in his complaint,” will also grant him an opportunity

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to “effectively” amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing

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

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III.

CONCLUSION AND ORDER

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF

Doc. No. 2) is GRANTED.
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2.

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The Secretary of the California Department of Corrections and

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Rehabilitation, or his designee, shall collect from Plaintiff’s prison trust account the $350

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filing fee owed in this case by collecting monthly payments from the account in an

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amount equal to twenty percent (20%) of the preceding month’s income and forward

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payments to the Clerk of the Court each time the amount in the account exceeds $10 in

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accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY

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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3.

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The Clerk of the Court is directed to serve a copy of this Order on Jeffrey

A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
942883, Sacramento, California, 94283-0001.

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IT IS FURTHER ORDERED that:

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4.

Plaintiff’s Complaint is DISMISSED without prejudice for failing to state

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a claim and for seeking monetary damages against immune defendants pursuant to 28

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U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45)

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days leave from the date this Order is entered into the Court’s docket in which to file a

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First Amended Complaint which cures all the deficiencies of pleading noted above.

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

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original pleading. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes

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the original.”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted) (“All

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causes of action alleged in an original complaint which are not alleged in an amended

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complaint are waived.”).

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Should Plaintiff fail to file an Amended Complaint within the time provided, the

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Court shall enter a final Order dismissing this civil action without prejudice based on

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Plaintiff’s failure to state a claim upon which relief can be granted pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b).

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DATED: September 25, 2014

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HONORABLE LARRY ALAN BURNS
United States District Judge

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