Salas v. San Diego County Jail & Medical et al

Filing 3

ORDER: Granting (1) Motion for Leave to Proceed in forma pauperis (ECF No. 2 ); and (2) Dismissing Complaint for Failing to State a Claim. 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 ac count exceeds $10 in accordance with 28 USC 1915(b)(2). The Court Dismisses Plaintiff's Complaint for failing to state a claim upon which relief may be granted. Signed by Judge John A. Houston on 4/8/2016. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service, as directed in this Order - mailed Order to Secretary, CDCR, and mailed Order t/w form to Plaintiff)(rlu)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

LARRY SALAS,
CDCR No. AY-1376

15
16

ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; AND (2) DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM

Plaintiff,

13
14

Case No.: 3:16-cv-00736-JAH-JLB

v.
SAN DIEGO COUNTY JAIL &
MEDICAL; R.N. BURNS; SAN DIEGO
SHERIFF'S DEPT.,
Defendant.

17
18

Larry Salas (“Plaintiff”), currently incarcerated at California Rehabilitation Center

19
20

located in Norco, California, and proceeding pro se, has filed a civil rights complaint

21

(“Compl.”) pursuant to 42 U.S.C. § 1983 (Doc. No. 1).

22

Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when

23

he filed his Complaint; instead, he has a Motion to Proceed In Forma Pauperis (“IFP”)

24

pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).

25

I.

26

Plaintiff’s Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the

27
28

1
3:16-cv-00736-JAH-JLB

1

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

2

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

3

entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

4

Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a

5

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

6

entire fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015),

7

regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &

8

(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

9

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

10

(“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the

11

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

12

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

13

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

14

Court assesses an initial payment of 20% of (a) the average monthly deposits in the

15

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

16

past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.

17

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

18

collects subsequent payments, assessed at 20% of the preceding month’s income, in any

19

month in which the prisoner’s account exceeds $10, and forwards those payments to the

20

Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

21

In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

22

account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews,

23

398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity which shows

24

he has a current balance of $0.00. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no

25

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

26

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

27
28

2
3:16-cv-00736-JAH-JLB

1

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

2

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

3

based solely on a “failure to pay . . . due to the lack of funds available.”).

4

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

5

assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

6

balance of the filing fee owed must be collected and forwarded to the Clerk of the Court

7

pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

8

II.

9
10

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

Standard of Review

Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA

11

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

12

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

13

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

statutes, the Court must sua sponte dismiss any complaint, or any portion of a complaint,

17

which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

18

who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203

19

F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621

20

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

21

All complaints must contain “a short and plain statement of the claim showing that

22

the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not

23

required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

24

mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

25

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

26

a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

27
28

3
3:16-cv-00736-JAH-JLB

1

the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

2

possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

3

Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

4

“When there are well-pleaded factual allegations, a court should assume their

5

veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

6

Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

7

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

8

allegations of material fact and must construe those facts in the light most favorable to

9

the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

10
11

§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
However, while the court “ha[s] an obligation where the petitioner is pro se,

12

particularly in civil rights cases, to construe the pleadings liberally and to afford the

13

petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

14

2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

15

“supply essential elements of claims that were not initially pled.” Ivey v. Board of

16

Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and

17

conclusory allegations of official participation in civil rights violations” are simply not

18

“sufficient to withstand a motion to dismiss.” Id.

19

B.

20

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

42 U.S.C. § 1983

21

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

22

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

23

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

24

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

25

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

26

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

27
28

4
3:16-cv-00736-JAH-JLB

1

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

2

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

3

C.

4

First, the Court finds Plaintiff’s Complaint requires sua sponte dismissal pursuant

Improper Defendant

5

to 28 U.S.C. § 1915(e)(2)(B)(1) and § 1915A(b)(1) to the extent it seeks relief under

6

§ 1983 against the “San Diego County Jail.” See Compl. at 1.

7

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

8

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

9

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

10

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

11

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

12

detention facility is not a proper defendant under § 1983. See Vance v. County of Santa

13

Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as a

14

defendant is not an appropriate means of pleading a § 1983 action against a

15

municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758

16

(N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone’s

17

constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’).

18

Therefore, Plaintiff’s Complaint fails to state a claim upon which § 1983 relief can

19

be granted against the San Diego County Jail and any purported claims against the San

20

Diego County Jail must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

21

§ 191A(b)(1).

22

D.

23

Second, while the County of San Diego may be considered a “person” properly

24

subject to suit under § 1983, see Monell v. Dept. of Social Services, 436 U.S. 658, 691

25

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

26

may be held liable only where the Plaintiff alleges facts to show that a constitutional

Municipal Liability

27
28

5
3:16-cv-00736-JAH-JLB

1

deprivation was caused by the implementation or execution of “a policy statement,

2

ordinance, regulation, or decision officially adopted and promulgated” by the

3

municipality, or a “final decision maker” for the municipality. Monell, 436 U.S. at 690;

4

Board of the County Comm’rs v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block,

5

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

6

liability are not cognizable theories of recovery against a municipality.” Miranda v.

7

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

8

The County of San Diego “cannot be held liable solely because it employs a

9

tortfeasor.” Monell, 436 U.S. at 691; Navarro, 72 F.3d at 714. Instead, to allege a claim

10

of municipal liability, Plaintiff must include in his pleading enough “factual content” to

11

support a reasonable inference to show that: (1) he was deprived of a constitutional right;

12

(2) the county had a policy; (3) the policy amounted to deliberate indifference to his

13

constitutional right; and (4) the policy was the “moving force behind the constitutional

14

violation.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see also

15

Iqbal, 556 U.S. at 678; Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

16

As currently pleaded, however, Plaintiff’s Complaint fails to state a claim under 28

17

U.S.C. §§ 1915(e)(2) and § 1915A(b) because he has failed to allege any facts which

18

“might plausibly suggest” that he was subject to unsanitary or unsafe conditions pursuant

19

to any municipal custom, policy, or practice implemented or promulgated with deliberate

20

indifference to his constitutional rights, or that such a policy was the “moving force” or

21

cause of his injury. See Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir.

22

2012) (applying Iqbal’s pleading standards to Monell claims); Brown, 520 U.S. at 404

23

(“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable

24

to the municipality . . . [t]he plaintiff must also demonstrate that, through its deliberate

25

conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a

26

plaintiff must show that the municipal action was taken with the requisite degree of

27
28

6
3:16-cv-00736-JAH-JLB

1

culpability and must demonstrate a causal link between the municipal action and the

2

deprivation of federal rights.”).

3

E.

4

Third, Plaintiff’s Complaint contains minimal factual allegations as to whom he

5

claims violated his constitutional rights and contains no “further factual enhancement”

6

which describes how, or to what extent, any individual became aware of, or were actually

7

aware of, his alleged serious medical needs. “Because vicarious liability is inapplicable

8

to . . . §1983 suits, a plaintiff must plead that each government-official defendant,

9

through the official’s own individual actions, has violated the Constitution.” Iqbal, 556

10

U.S. at 676; see also Jones v. Community Redevelopment Agency of City of Los Angeles,

11

733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some

12

degree of particularity overt acts which defendants engaged in” in order to state a claim).

Individual Liability and Causation

13

“Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks

14

v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must

15

be individualized and focus on the duties and responsibilities of each individual

16

defendant whose acts or omissions are alleged to have caused a constitutional

17

deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode,

18

423 U.S. 362, 370-71 (1976). Plaintiff includes no detail as to what the San Diego

19

County Jail medical staff knew about his health conditions or how they came to

20

administer treatment to Plaintiff. As such, his allegations are insufficient to state a

21

section 1983 claim. Iqbal, 662 U.S. at 678 (noting that Fed.R.Civ.P. 8 “demands more

22

than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and that “[t]o

23

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

24

as true, to ‘state a claim for relief that is plausible on its face.’”), quoting Twombly, 550

25

U.S. at 555, 570).

26

///

27
28

7
3:16-cv-00736-JAH-JLB

Accordingly, Plaintiff’s Complaint requires dismissal on this basis pursuant to 28

1
2

U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d

3

at 1004.

4

F.

5

Even if Plaintiff identified specific individuals, he has still failed to state a

Inadequate Medical Care Claim

6

plausible Eighth Amendment claim against any of those persons. Only “deliberate

7

indifference to serious medical needs of prisoners constitutes the unnecessary and wanton

8

infliction of pain . . . proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S.

9

97, 103-04 (1976) (citation and internal quotation marks omitted). “A determination of

10

‘deliberate indifference’ involves an examination of two elements: (1) the seriousness of

11

the prisoner’s medical need and (2) the nature of the defendant’s response to that need.”

12

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by

13

WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

14

First, “[b]ecause society does not expect that prisoners will have unqualified access

15

to health care, deliberate indifference to medical needs amounts to an Eighth Amendment

16

violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992),

17

citing Estelle, 429 U.S. at 103-04. “A ‘serious’ medical need exists if the failure to treat

18

a prisoner’s condition could result in further significant injury or the ‘unnecessary and

19

wanton infliction of pain.’” McGuckin, 914 F.2d at 1059, quoting Estelle, 429 U.S. at

20

104. “The existence of an injury that a reasonable doctor or patient would find important

21

and worthy of comment or treatment; the presence of a medical condition that

22

significantly affects an individual’s daily activities; or the existence of chronic and

23

substantial pain are examples of indications that a prisoner has a ‘serious’ need for

24

medical treatment.” Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir.

25

1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989).

26

///

27
28

8
3:16-cv-00736-JAH-JLB

1

At this stage of the pleadings, the Court will presume Plaintiff’s claims regarding

2

his health care needs are sufficient to plead an objectively serious medical need.

3

McGuckin, 914 F.2d at 1059. However, even assuming Plaintiff’s medical needs are

4

sufficiently serious, his Complaint still fails to include any further “factual content” to

5

show that any Defendant acted with “deliberate indifference” to his needs. Id., at 1060;

6

see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678.

7

While Plaintiff claims that Defendant Burns “took away my brace” and assigned

8

him a top bunk from which he allegedly fell, his Complaint lacks the “further factual

9

enhancement” which demonstrates that any Defendant’s “purposeful act or failure to

10

respond to [his] pain or possible medical need,” and also fails to set forth any specific

11

allegations that the failure to provide him with the correct dosage of his medication was a

12

result of indifference. Iqbal, 556 U.S. at 678, citing Twombly, 550 U.S. at 557; Wilhelm

13

v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012), citing Jett, 439 F.3d at 1096. This is

14

because to be deliberately indifferent, a Defendant’s acts or omissions must involve more

15

than an ordinary lack of due care. Wilhelm, 680 F.3d at 1122.

16

Plaintiff’s Complaint contains no facts sufficient to show that any individual acted

17

with deliberate indifference to his plight by “knowing of and disregarding an[y] excessive

18

risk to his health and safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

19

Accordingly, the Court finds that Plaintiff’s Complaint fails to state an Eighth

20

Amendment inadequate medical care claim and is subject to sua sponte dismissal in its

21

entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203

22

F.3d at 1126-27; Rhodes, 621 F.3d at 1004. Because Plaintiff is proceeding without

23

counsel, the Court has provided him “notice of the deficiencies in his complaint,” and

24

will grant him an opportunity to amend his Complaint. See Akhtar v. Mesa, 698 F.3d

25

1202, 1212 (9th Cir. 2012), citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

26

1992).

27
28

9
3:16-cv-00736-JAH-JLB

1

III.

Conclusion and Orders

2

Good cause appearing, the Court:

3

1.

4

(Doc. No. 2).

5

2.

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

DIRECTS the Secretary of the CDCR, or his designee, to collect from

6

Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

7

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

8

preceding month’s income and forwarding those payments to the Clerk of the Court each

9

time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

10

PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

11

ASSIGNED TO THIS ACTION.

12
13

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.

14

4.

DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

15

relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS

16

him forty-five (45) days leave from the date of this Order in which to file an Amended

17

Complaint which cures all the deficiencies of pleading noted. Plaintiff’s Amended

18

Complaint must be complete in itself without reference to his original pleading.

19

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

20

considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

21

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

22

the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

23

claims dismissed with leave to amend which are not re-alleged in an amended pleading

24

may be “considered waived if not repled.”).

25

///

26

///

27
28

10
3:16-cv-00736-JAH-JLB

1

5.

DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a

2

blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C.

3

§ 1983” for his use in amending.

4
5
6
7

Dated: April 8, 2016
Hon. John A. Houston
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

11
3:16-cv-00736-JAH-JLB