Daniels v. Medical Services Div. et al

Filing 4

ORDER: (1) Granting 2 Motion to Proceed in Forma Pauperis; and (2) Dismissing Complaint for Failing to State a Claim. The Watch Commander of George Bailey Detention Facility, or his designee, shall collect from Plaintiff's inmate trust accoun t the $350 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (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. § 1915(b)(2). Plaintiff is further granted forty-five (45) days leave from the date this Order is filed in which to submit a First Amended Complaint. Signed by Judge Roger T. Benitez on 2/18/2015.(Sent 1983 form to Plaintiff)(cc: Watch Commander) (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IVORY FRANKLIN DANIELS aka
FRANK FULLER,
Booking #14705639,
Plaintiff,

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

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vs.

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Civil
No.

MEDICAL SERVICES DIVISION;
ALFRED JOSHUA, M.D.; SAN DIEGO
COUNTY SHERIFF’S DEP’T;
WILLIAM D. GORE,
Defendants.

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

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Ivory Franklin Daniels, also known as Frank Fuller, (“Plaintiff”), currently

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incarcerated at George Bailey Detention Facility (“GBDF”) in San Diego, California and

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proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983.

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Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2).

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I.

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 of
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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a

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prisoner granted leave to proceed IFP remains obligated to pay the entire fee in

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installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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The Court finds that Plaintiff has submitted an affidavit which complies with 28

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U.S.C. § 1915(a)(1), and that he has attached a certified copy of his trust account

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statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff’s trust

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account statement shows that he has insufficient funds from which to pay an initial

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partial filing fee. Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP

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(ECF No. 2) and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1).

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However, the Court further orders the Watch Commander at George Bailey Detention

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Facility to garnish the entire $350 balance of the filing fees owed in this case, collect and

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forward them to the Clerk of the Court pursuant to the installment payment provisions

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set forth in 28 U.S.C. § 1915(b)(1).

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II.

SCREENING PURSUANT 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

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also obligate 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)(B) and 1915A(b). Under

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these provisions, the Court must sua sponte dismiss any prisoner civil action and all

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other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state

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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, the additional $50
administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id.
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a claim, or which seek damages from defendants who are immune. See 28 U.S.C.

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

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

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(§ 1915A).

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“To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements:

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(1) that a right secured by the Constitution or laws of the United States was violated; and

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(2) that the alleged violation was committed by a person acting under color of state law.”

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Campbell v. Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011)

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(citing Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987)).

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First, to the extent Plaintiff alleges that the “San Diego County Sheriff’s

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Department,” and the “Medical Services Division” have violated his constitutional

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rights, his Complaint fails to state a claim because these entities are not “persons” subject

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to suit under § 1983. Neither a local law enforcement department (like the San Diego

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County Sheriff’s Office), a jail (like the San Diego County Jail), or a state agency (like

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the California Department of Corrections), are proper defendants under § 1983. See

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Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a

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municipal department as a defendant is not an appropriate means of pleading a § 1983

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action against a municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F.

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Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who

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violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not

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a ‘person.’);

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While the County of San Diego itself may be considered a “person” and therefore,

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a proper defendant under § 1983, see Monell v. Department of Social Services, 436 U.S.

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658, 691 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988),

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Plaintiff has not named the County as a Defendant. Moreover, as a municipality, the

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County may be held liable under § 1983–but only where the Plaintiff alleges facts to

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show that a constitutional deprivation was caused by the implementation or execution

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of “a policy statement, ordinance, regulation, or decision officially adopted and
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promulgated” by the County, or a “final decision maker” for the County. Monell, 436

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U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997);

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Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other words, “respondeat superior

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and vicarious liability are not cognizable theories of recovery against a municipality.”

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Miranda v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002). “Instead,

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a Monell claim exists only where the alleged constitutional deprivation was inflicted in

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‘execution of a government’s policy or custom.’” Id. (quoting Monell, 436 U.S. at 694).

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As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C.

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§ 1915A(b) because he has failed to allege any facts which “might plausibly suggest”

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that either the County itself, or any individual County employee (a “person”), like Sheriff

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Gore, violated his constitutional rights. See Hernandez v. County of Tulare, 666 F.3d

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631, 637 (9th Cir. 2012) (applying Ashcroft v. Iqbal, 556 U.S. 662 (2009)’s pleading

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standards to Monell claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42

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U.S.C. § 1983 provides for relief only against those who, through their personal

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involvement as evidenced by affirmative acts, participation in another’s affirmative acts,

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or failure to perform legally required duties, cause the deprivation of plaintiff’s

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constitutionally protected rights).

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Plaintiff does make general allegations of refusal by unnamed medical staff to

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provide him with medication he was receiving before he was incarcerated. Where an

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inmate’s claim is one of inadequate medical care, the inmate must allege “acts or

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omissions sufficiently harmful to evidence deliberate indifference to serious medical

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

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

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

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overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

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1997). A medical need is serious “if the failure to treat the prisoner’s condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”

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McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious
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medical need include “the presence of a medical condition that significantly affects an

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individual’s daily activities.” Id. at 1059-60. By establishing the existence of a serious

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medical need, an inmate satisfies the objective requirement for proving an Eighth

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Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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

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delay, or intentionally interfere with a prescribed course of medical treatment, or it may

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be shown by the way in which prison medical officials provide necessary care.

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Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said

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that a inmate’s civil rights have been abridged with regard to medical care, however, “the

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indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’

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or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See

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

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While Plaintiff may be able to allege additional facts to support an Eighth

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Amendment claim against individually named medical staff, he currently only pleads

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facts that demonstrate a difference of opinion. A mere difference of opinion between

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an inmate and prison medical personnel regarding appropriate medical diagnosis and

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treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild,

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891 F.2d 240, 242 (9th Cir. 1989).

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Accordingly, the Court finds that Plaintiff’s Complaint fails to state a viable

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section 1983 claim against any of the currently named Defendants, it is therefore subject

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to sua sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Because

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Plaintiff is proceeding pro se, however, the Court having now provided him with “notice

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of the deficiencies in his complaint,” will also provide him an opportunity to

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“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 No.

2) is GRANTED.
2.

The Watch Commander of George Bailey Detention Facility, or his

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designee, shall collect from Plaintiff’s inmate trust account the $350 balance of the filing

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

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

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

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

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BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

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3.

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

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WATCH COMMANDER, George Bailey Detention Facility, 446 Alta Road, Suite 5300,

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San Diego, California 92158.

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

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

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the date this Order is filed in which to submit a First Amended Complaint which cures

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all the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be

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complete in itself without reference to his original pleading. See S.D. CAL. CIVLR 15.1.

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Defendants not named and any claims not re-alleged in the Amended Complaint will be

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

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5.

The Clerk of Court is directed to mail a court approved civil rights

complaint form to Plaintiff.
DATED: February 18, 2015

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Hon. Roger T. Benitez
United States District Judge
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