Han v. Hjerpe et al

Filing 7

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is directed 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). Pla's Complaint is dismissed for failing to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2) amnd 1915A(B). Pla granted 45 days leave from the date of this Order to file an Amended Complaint. Signed by Judge Cynthia Bashant on 5/4/2016. (Order electronically transmitted to Secretary of CDCR) (Blank 1983 Complaint form t/w copy of this Order sent to Plaintiff via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT HAN, Case No. 3:16-cv-00522-BAS-RBB Plaintiff, 12 13 14 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM v. DR. D. HJERPE; L. FLORES; C. SANCHEZ; DOES 1 - 20, 15 Defendants. 16 17 18 Robert Han (“Plaintiff”), currently incarcerated at Calipatria State Prison located in 19 Calipatria, California, and proceeding pro se, has filed a civil rights complaint (“Compl.”) 20 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) 21 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when 22 he filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis 23 (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) Plaintiff’s Motion to Proceed IFP 24 I. 25 All parties instituting any civil action, suit or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee. See 27 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the 28 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 1 16cv522 1 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 2 prisoner and he is granted leave to proceed IFP, he remains obligated to pay the entire fee 3 in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless 4 of whether his action is ultimately dismissed. See 28 U.S.C. §§ 1915(b)(1) & (2); Taylor 5 v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 6 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 7 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 8 trust fund account statement (or institutional equivalent) for the . . . six-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the 12 account for the past six months, or (b) the average monthly balance in the account for the 13 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 14 §§ 1915(b)(1), (b)(4). The institution having custody of the prisoner then collects 15 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 16 which the prisoner’s account exceeds $10, and forwards those payments to the Court until 17 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 18 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 19 account statement pursuant to 28 U.S.C. § 1915(a)(2) and Civ. L.R. 3.2. See Andrews, 20 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity which shows 21 he has a current balance of $0.00. Accordingly, the Court GRANTS Plaintiff’s Motion to 22 Proceed IFP (ECF No. 2) and assesses no initial partial filing fee per 28 U.S.C. § 23 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 24 prohibited from bringing a civil action or appealing a civil action or criminal judgment 25 for the reason that the prisoner has no assets and no means by which to pay [an] initial 26 partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a 27 “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to 28 pay . . . due to the lack of funds available.”). However, the entire $350 balance of the 2 16cv522 1 filing fee owed must be collected and forwarded to the Clerk of the Court pursuant to the 2 installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 3 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 4 A. Standard of Review 5 Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA 6 also requires the Court to review complaints filed by all persons proceeding IFP and by 7 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 8 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 9 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 10 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 11 provisions, the Court must sua sponte dismiss any complaint, or any portion of a 12 complaint, which is frivolous, malicious, fails to state a claim, or seeks damages from 13 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 14 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 15 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 16 All complaints must contain “a short and plain statement of the claim showing that 17 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 18 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 19 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 20 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 21 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 22 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 23 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 24 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 25 “When there are well-pleaded factual allegations, a court should assume their 26 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 27 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 28 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 3 16cv522 1 allegations of material fact and must construe those facts in the light most favorable to 2 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 3 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 4 However, while the court “ha[s] an obligation where the petitioner is pro se, 5 particularly in civil rights cases, to construe the pleadings liberally and to afford the 6 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n. 7 (9th Cir. 7 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985)), it may not 8 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of 9 the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory 10 allegations of official participation in civil rights violations” are simply not “sufficient to 11 withstand a motion to dismiss.” Id. 12 B. 13 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 14 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 15 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 16 substantive rights, but merely provides a method for vindicating federal rights elsewhere 17 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 18 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 19 deprivation of a right secured by the Constitution and laws of the United States, and (2) 20 that the deprivation was committed by a person acting under color of state law.” Tsao v. 21 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 22 C. 23 Plaintiff alleges that he “suffered an injury to his left index finger” while playing Eighth Amendment Claims 24 basketball. (Compl. at 2.) That same day, due to “severe pain,” Plaintiff sought medical 25 treatment. (Id.) Plaintiff, believing his finger was broken, was examined by Defendant 26 Flores who “took a brief, cursory glance” at Plaintiff’s finger then “grabbed the injured 27 finger and jerked it up and down, causing excruciating pain.” (Id. at 3.) Flores filled out 28 a “CDC 7362 Medical Request Form” which Plaintiff has attached as Exhibit “1.” (Id., 4 16cv522 1 ECF No. 1 at 8, Ex. 1, “Health Care Services Request Form.”) The form notes 2 “swelling” and “bruising” and it appears that x-rays were ordered by Defendant Flores. 3 (Id.) Plaintiff was sent back to his cell. (Id. at 3.) The next morning Plaintiff asked his “unit officer, Correctional Officer C. 4 5 Pennington,” if he could return to the medical clinic to be examined by a physician. (Id. 6 at 3-4.) Plaintiff was later called to the yard clinic and examined by another nurse, 7 Defendant Sanchez. (Id. at 4.) Plaintiff told Defendant Sanchez that he could “not sleep 8 or move his injured left index finger.” (Id.) Defendant Sanchez gave Plaintiff 9 medication for his pain and told Plaintiff that he would receive an x-ray the next day. 10 (Id.) Plaintiff objected and “asked for his finger to be x-rayed that day.” (Id.) Defendant 11 Sanchez refused. (Id.) 12 The next day, Plaintiff went to the yard clinic again and inquired about receiving 13 the x-ray. (Id.) Plaintiff was “sent to his cell without treatment.” (Id.) Later that same 14 day, in the afternoon, Plaintiff complained to Correctional Officer Pennington that he was 15 in “extreme pain.” (Id.) Pennington called the clinic to find out the status of the x-rays 16 and was told that the “order for x-rays had been botched and had to be resubmitted.” 17 (Id.) Plaintiff received x-rays the following day and was examined by a physician. (Id. 18 at 5.) 19 Only “deliberate indifference to serious medical needs of prisoners constitutes the 20 unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” 21 Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks 22 omitted). “A determination of ‘deliberate indifference’ involves an examination of two 23 elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the 24 defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 25 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 26 1997) (en banc) (quoting Estelle, 429 U.S. at 104). 27 First, “[b]ecause society does not expect that prisoners will have unqualified access 28 to health care, deliberate indifference to medical needs amounts to an Eighth Amendment 5 16cv522 1 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 2 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 3 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 4 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 5 104). “The existence of an injury that a reasonable doctor or patient would find important 6 and worthy of comment or treatment; the presence of a medical condition that 7 significantly affects an individual’s daily activities; or the existence of chronic and 8 substantial pain are examples of indications that a prisoner has a ‘serious’ need for 9 medical treatment.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 10 11 1990)); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). Plaintiff alleges to have suffered a broken finger, which the Court finds sufficient 12 to plead an objectively serious medical need. McGuckin, 914 F.2d at 1059. However, 13 even assuming Plaintiff’s medical needs are sufficiently serious, his Complaint still fails 14 to include any further “factual content” to show that any Defendant acted with “deliberate 15 indifference” to his needs. Id. at 1060; see also Jett v. Penner, 439 F.3d 1091, 1096 (9th 16 Cir. 2006); Iqbal, 556 U.S. at 678. 17 Specifically, Plaintiff acknowledges that he was seen and examined by Defendants 18 Flores and Sanchez in the two days following his accident. (See Compl. at 3-4.) He 19 further acknowledges that both Defendants ordered x-rays for his finger and Defendant 20 Sanchez also provided him with pain medication. (Id.) While Plaintiff concludes 21 Defendants acted with “deliberate indifference” by failing to provide the x-rays in a 22 timelier manner, his Complaint lacks sufficient factual allegations to demonstrate any 23 Defendant’s “purposeful act or failure to respond to [his] pain or possible medical need,” 24 and any “harm caused by [this] indifference.” Iqbal, 556 U.S. at 678 (citing Twombly, 25 550 U.S. at 557); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 26 439 F.3d at 1096). This is because to be deliberately indifferent, Flores and Sanchez’s 27 acts or omissions must involve more than an ordinary lack of due care. Snow v. 28 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); 6 16cv522 1 Wilhelm, 680 F.3d at 1122. “A difference of opinion between a physician and the 2 prisoner–or between medical professionals–concerning what medical care is appropriate 3 does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. 4 Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122–23. Instead, Plaintiff 5 must plead facts sufficient to “show that the course of treatment the doctor[] chose was 6 medically unacceptable under the circumstances and that the defendant[] chose this 7 course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 8 (citation and internal quotations omitted). 9 Plaintiff’s Complaint, however, contains no facts sufficient to show that either of 10 Flores or Sanchez acted with deliberate indifference to his plight by “knowing of and 11 disregarding an[y] excessive risk to his health and safety.” Farmer v. Brennan, 511 U.S. 12 825, 837 (1994). Delays in receiving treatment do not by themselves show deliberate 13 indifference, unless the delay is alleged to be harmful. See McGuckin, 974 F.2d at 1060; 14 Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Here, 15 Plaintiff alleges no facts from which the Court could find that any delay that may have 16 occurred in diagnosing his broken finger caused any harm. 17 Plaintiff also seeks to hold Defendant Hjerpe liable because “Dr. Hjerpe was not 18 only made aware of plaintiff’s injury, but also interviewed plaintiff for appeal.” (Compl. 19 at 5.) However, it appears that any knowledge on the part of Defendant Hjerpe of 20 Plaintiff’s claims came after he received the treatment. There are no allegations that 21 Hjerpe was aware of the alleged delays in treatment while they were ongoing. Plaintiff 22 seeks to hold Defendant Hjerpe liable for his role in responding to Plaintiff’s grievances 23 but this alone is insufficient to find an Eighth Amendment violation. See Peralta v. 24 Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (finding no Eighth Amendment deliberate 25 indifference claim arising from a physician’s response to a grievance where they relied 26 on the medical opinions of staff who investigated the plaintiff’s “complaints and already 27 signed off on the treatment plan”). 28 7 16cv522 1 Accordingly, the Court finds that Plaintiff’s Complaint also fails to state an Eighth 2 Amendment inadequate medical care claim against any named Defendant, and that 3 therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. 4 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d 5 at 1004. 6 Because Plaintiff is proceeding without counsel, and has now been provided with 7 notice of his Complaint’s deficiencies, the Court will grant him leave to amend. See 8 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 9 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 10 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 11 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 12 Cir. 2012)). 13 III. 14 For the foregoing reasons, the Court: 15 1. 16 17 Conclusion and Order GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 18 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 19 monthly payments from his account in an amount equal to twenty percent (20%) of the 20 preceding month’s income and forwarding those payments to the Clerk of the Court each 21 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 22 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 23 ASSIGNED TO THIS ACTION. 24 25 26 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 27 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS 28 him forty-five (45) days leave from the date of this Order in which to file an Amended 8 16cv522 1 Complaint that cures all the deficiencies of pleading noted. Plaintiff’s Amended 2 Complaint must be complete in itself without reference to his original pleading. 3 Defendants not named and any claims not re-alleged in the Amended Complaint will be 4 considered waived. See Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 5 Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 6 original.”); Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 7 dismissed with leave to amend which are not re-alleged in an amended pleading may be 8 “considered waived if not repled”). 9 5. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a 10 blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. 11 § 1983” for his use in amending. 12 IT IS SO ORDERED. 13 14 DATED: May 4, 2016 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 16cv522

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