James v. Lee et al

Filing 10

ORDER Dismissing Second Amended Complaint as Frivolous and for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Court grants Plaintiff forty-five (45) days leave in which to file an Amended Complaint which cur es all the deficiencies of pleading described in this Order.. Signed by Judge Anthony J. Battaglia on 4/7/2017.(Mailed to Plaintiff a blank copy of the Court's Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use in amending.) (All non-registered users served via U.S. Mail Service)(fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KYLE ROBERT JAMES,
Booking # 15746082,

Case No.: 3:16-cv-01592-AJB-JLB
ORDER DISMISSING SECOND
AMENDED COMPLAINT AS
FRIVOLOUS AND FOR FAILING
TO STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2) AND
§ 1915A(b)

Plaintiff,

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vs.

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BARBARA LEE, et al.
Defendants.

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I.

Procedural History

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On June 21, 2016, Plaintiff, Kyle James, currently incarcerated at the California

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State Prison - Los Angeles County located in Lancaster, California, filed a civil rights

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Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Because Plaintiff’s

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Motion to Proceed IFP complied with 28 U.S.C. § 1915(a)(2), the Court granted him

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leave to proceed without full prepayment of the civil filing fees required by 28 U.S.C.
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§ 1914(a), but dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b). On November 16, 2016, Plaintiff filed his First Amended

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Complaint (“FAC”). (ECF No. 6.) In this FAC, Plaintiff names only Defendant Barbara

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Lee, John Doe Doctor, Jane Doe Doctor and “S.D.C.J. Med. Supervisor” as Defendants.

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The Court, once again, dismissed Plaintiff’s FAC on the grounds that he failed to

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state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF

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No. 8.) On March 30, 2017, Plaintiff filed his Second Amended Complaint (“SAC”). In

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his SAC, Plaintiff again names Barbara Lee as a Defendant but also adds Defendants

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Kania and Harvel.

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II.

Legal Standards for Screening Complaint Pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)

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Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires a pre-

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Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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A.

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Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,

42 U.S.C. § 1983

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privileges, or immunities secured by the Constitution and laws” of the United States.

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Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a person

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acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of

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Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

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B.

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Plaintiff broadly alleges that during the two and one-half years he was in the

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custody of the San Diego County Sheriff’s Department (“SDCSD”) he was “never treated

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for nerve damage” in his hands. (SAC at 4.) Plaintiff claims that the injuries to his hands

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was “caused by Sheriff Employees L.T. Kania, Sgt. Blackwell, Lance Tade and many

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other deputies.” (Id.)

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Duplicative claims

Here, the Court takes judicial notice that Plaintiff has two pending actions

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involving use of force by SDCSD deputies, including claims against Blackwell and Tade,

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and therefore, Plaintiff’s SAC is subject to sua sponte dismissal pursuant to 28 U.S.C.

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§§ 1915(e)(2) & 1915A(b) because it contains claims which are duplicative of these two
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other actions. See James v. Agnew, et al., S.D. Cal. Civil Case No. 3:15-cv-00409-AJB-

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MDD and James v. Emmens, et al., S.D. Cal. Civil Case No. 3:16-cv-2823-WQH-NLS. A

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court “‘may take notice of proceedings in other courts, both within and without the

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federal judicial system, if those proceedings have a direct relation to matters at issue.’”

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Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic,

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Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

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A prisoner’s complaint is considered frivolous if it “merely repeats pending or

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previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir.

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1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations

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omitted). Because Plaintiff appears to be litigating the identical claims presented in the

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instant action in James v. Agnew, et al., S.D. Cal. Civil Case No. 3:15-cv-00409-AJB-

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MDD and James v. Emmens, et al., S.D. Cal. Civil Case No. 3:16-cv-2823-WQH-NLS,

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the Court must dismiss these duplicative claims pursuant to 28 U.S.C. § 1915A(b)(1). See

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Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1.

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C.

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Plaintiff alleges that he has “nerve damage in [his] hands” which Defendants

Medical Care Claims

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“failed to treat.” (SAC at 4.) Plaintiff claims Defendant Lee “had knowledge of my

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medical issue with the nerve damage in my hands” and for “one reason or another

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managed to avoid providing treatment.” (Id.)

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Prison officials are liable only if they are deliberately indifferent to the prisoner’s

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serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); see also Clouthier

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v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 2010) (applying Estelle’s

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Eighth Amendment deliberate indifference standard to inadequate medical care claims

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alleged to violate a pretrial detainees’ due process rights).

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Here, Plaintiff claims he suffers from “nerve damage” but he fails to include any

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further “factual matter” sufficient to show or describe how or to what extent his medical

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needs were objectively serious. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1991) (defining a “serious medical need” as one which the “failure to treat ... could result
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in further significant injury or the ‘unnecessary and wanton infliction of pain.’”),

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overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)

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(en banc) (citing Estelle, 429 U.S. at 104). The “existence of an injury that a reasonable

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doctor or patient would find important and worthy of comment or treatment; the presence

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of a medical condition that significantly affects an individual’s daily activities; or the

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existence of chronic and substantial pain are examples of indications that a prisoner has a

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‘serious’ need for medical treatment.” McGuckin, 974 F.3d at 1059-60.

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Moreover, even if the Court assumes Plaintiff’s medical conditions were

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“objectively serious,” nothing in his SAC supports a “reasonable inference that [any

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individual] defendant” acted with deliberate indifference to his plight. Iqbal, 556 U.S. at

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678. “In order to show deliberate indifference, an inmate must allege sufficient facts to

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indicate that prison officials acted with a culpable state of mind.” Wilson v. Seiter, 501

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U.S. 294, 302 (1991). Plaintiff simply alleges that Defendant Lee was “aware” of his

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medical condition but he fails to allege any specific facts regarding Lee’s responses to his

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requests for treatment. (SAC at 4.) There are no specific allegations as to the date that

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Plaintiff claims he sustained this injury, the dates which he requested medical treatment

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and was allegedly denied, or the identity of any specific medical personnel whom he

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claims failed to treat him.

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In addition, the indifference to medical needs also must be substantial; inadequate

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treatment due to malpractice, or even gross negligence, does not amount to a

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constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir. 2004) (“Deliberate indifference is a high legal standard.”) (citing Hallett v.

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Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1334

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(9th Cir. 1990)).

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In his SAC, Plaintiff claims that the “Sheriff’s blanket policy restricting

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medications like gabapentin to prisoners like [Plaintiff]” is “cruel and unusual

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punishment.” However, a difference of opinion between a pretrial detainee and the

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doctors or other trained medical personnel at the Jail as to the appropriate course or type
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of medical attention he requires does not amount to deliberate indifference, see Snow v.

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McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242

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(9th Cir. 1989)).

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Thus, Plaintiff’s SAC, as currently pleaded, does not include facts to show that any

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individual San Diego Jail official actually knew of, yet disregarded any serious medical

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need. See Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1193 (9th Cir. 2002)

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(“[D]eliberate indifference requires the defendant to be subjectively aware that serious

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harm is likely to result from a failure to provide medical care.”). Nor does it allege that

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any decision to refuse or delay a particular course of medical treatment caused him actual

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harm. See McGuckin, 974 F.2d at 1060. Without more, Plaintiff’s SAC currently amounts

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only to “unadorned, the defendant[s]-unlawfully-harmed-me accusation[s],” which

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“stop[] short of the line between possibility and plausibility of ‘entitlement to relief’” as

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to any constitutionally inadequate medical care claim. Iqbal, 556 U.S. at 678.

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D.

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Plaintiff claims in general terms that Sheriff Bill Gore had “knowledge of [his]

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injury” but “did nothing to treat me.” (SAC at 9.) Plaintiff fails to state a claim upon

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which § 1983 relief can be granted because he sets forth no individualized allegations of

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wrongdoing by Sheriff Gore, and instead seeks to hold him vicariously liable for the

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actions of his deputies. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is

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inapplicable to . . . § 1983 suits,” Plaintiff “must plead that each Government-official

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defendant, though the official’s own individual actions, has violated the Constitution.”)

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Plaintiff’s SAC contains no factual allegations describing what Defendant Sheriff

Respondeat Superior

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Gore knew, did, or failed to do, with regard to Plaintiff’s medical needs. Estate of Brooks

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v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required

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element of a § 1983 claim.”) “The inquiry into causation must be individualized and

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focus on the duties and responsibilities of each individual defendant whose acts or

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omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844

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F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg

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v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986).
Thus, without some specific “factual content” that might allow the Court to “draw

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the reasonable inference” that Sheriff Gore may be held personally liable for any

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unconstitutional conduct directed at Plaintiff, the Court finds his SAC, as currently

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pleaded, contains allegations which Iqbal makes clear fail to “state a claim to relief that is

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plausible on its face.” Iqbal, 556 U.S. at 568.

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E.

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A pro se litigant must be given leave to amend his or her complaint to state a claim

Leave to Amend

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unless it is absolutely clear the deficiencies of the complaint cannot be cured by

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amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when

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a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the

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plaintiff can correct the defect”). Therefore, while the Court finds Plaintiff’s SAC fails to

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state any claim upon which relief can be granted, it will provide him a chance to fix the

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pleading deficiencies discussed in this Order. See Akhtar v. Mesa, 698 F.3d 1202, 1212

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(9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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However, the Court cautions Plaintiff that he may not include allegations raised in other

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actions.

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III.

Conclusion and Order

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Good cause appearing, the Court:

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1.

DISMISSES Plaintiff’s SAC as frivolous and for failing to state a claim

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upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

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1915A(b).

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2.

GRANTS Plaintiff forty-five (45) days leave in which to file an Amended

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Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is

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cautioned, however, that should he choose to file an Amended Complaint, it must be

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complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim

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not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios,
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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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

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3.

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

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

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§ 1983” for his use in amending.

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IT IS SO ORDERED.
Dated: April 7, 2017

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