Welch v. UCSD Hospital

Filing 4

ORDER: (1) Granting Motion to Proceed in Forma Pauperis; and (2) Dismissing Complaint for Failure to State a Claim. Watch Commander for the GBDC, or his designee, to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $1 0 pursuant to 28 U.S.C. § 1915(b)(2). Plaintiff is granted forty-five (45) days leave from the date of this Order in which to file an Amended Complaint. Signed by Judge Roger T. Benitez on 1/1/2017.(cc: Watch Commander) (Sent § 1983 form to Plaintiff) (All non-registered users served via U.S. Mail Service)(knb)

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FILED 1 JAN 2 3 3 2017 CLERK US DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BY / DEPUTY 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RICO ANTIONE WELCH, Inmate Booking No. 16164431 15 ORDER: Plaintiff, 13 14 Case No.: 3:16-cv-02884-BEN-BGS (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; and v. UCSD HOSPITAL, Defendant. 16 (2) DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM 17 18 19 Rico Antione Welch (“Plaintiff’), currently housed at the George Bailey Detention 20 Center (“GBDC”) in San Diego, California, and proceeding pro se, has filed a civil rights 21 complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff did not prepay the civil 22 filing fee required by 28 U.S.C. § 1914(a), but has filed a Motion to Proceed In Forma 23 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 24 III 25 III 26 III 27 III 28 III l 3:16-cv-02884-BEN-BGS 1 I. Plaintiff’s Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 2 3 United States must satisfy a filing fee requirement. See 28 U.S.C. § 1914(a).1 An action 4 may proceed despite a plaintiffs failure to prepay the entire fee only if he is granted 5 leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d 1176, 6 1177 (9th Cir. 1999). However, if the plaintiff is a prisoner, even if he is granted leave to 7 proceed IFP he remains obligated to pay the full entire fee in “increments,” see Williams 8 v. Paramo, 775 F.3d 1182,1185 (9th Cir. 2015), regardless ofwhether his action is 9 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2). 10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 11 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 12 trust fund account statement (or institutional equivalent) for the ... six-month period 13 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 14 King, 398 F.3d 1113,1119 (9th Cir. 2005). From the certified trust account statement, 15 the Court assesses an initial payment of 20 percent of (a) the average monthly deposits in 16 the account for the past six months, or (b) the average monthly balance in the account for 17 the past six months, whichever is greater, unless the prisoner has no assets. See 28 18 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 19 prisoner collects subsequent payments, assessed at 20 percent of the preceding month’s 20 income, in any month in which the prisoner’s account exceeds $10, and forwards those 21 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 22 In support of his IFP Motion, Plaintiff has submitted an inmate certificate attesting 23 to his trust account balance and activity for the six-month period prior to the filing of his 24 Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. CivLR 3.2. This certificate 25 26 27 28 i In addition to the $350 statutory fee for this action, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-CV-02884-BEN-BGS 1 shows that Plaintiff has had no average monthly balance, and had no available funds to 2 his credit at the time of filing. Therefore, the Court GRANTS Plaintiffs Motion to 3 Proceed IFP (ECF No. 2), and assesses no initial partial filing fee per 28 U.S.C. 4 § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner 5 be prohibited from bringing a civil action or appealing a civil action or criminal judgment 6 for the reason that the prisoner has no assets and no means by which to pay the initial 7 partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 8 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 9 case based solely on a “failure to pay ... due to the lack of funds available to him when 10 payment is ordered.”) However, the entire $350 balance for this case must be forwarded 11 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 12 U.S.C. § 1915(b)(1). 13 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 14 A. Standard of Review 15 “The Court shall review, before docketing, if feasible or, in any event, as soon as 16 practicable after docketing,” complaints filed by all persons proceeding IFP, and by those 17 who are “incarcerated or detained in any facility [and] accused of, sentenced for, or 18 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 19 probation, pretrial release, or diversionary program.” See 28 U.S.C. §§ 1915(e)(2) and 20 1915A(b). The Court must sua sponte dismiss complaints, or any portions thereof, which 21 are frivolous, malicious, fail to state a claim, or which seek damages from defendants 22 who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 23 1122, 1126-27 (9th Cir. 2000). 24 All complaints must contain “a short and plain statement of the claim showing that 25 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 26 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 27 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 28 citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining whether 3 3:16-cv-02884-BEN-BGS 1 a complaint states a plausible claim for relief [is]... a context-specific task that requires 2 the reviewing court to draw on its judicial experience and common sense.” Id. at 679. 3 The “mere possibility of misconduct” falls short of meeting the Iqbal plausibility 4 standard. Id.; see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “When there are well-pleaded factual allegations, a court should assume their 5 6 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 7 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 8 (“Under § 1983, when determining whether a complaint states a claim, a court must 9 accept as true all allegations of material fact and must construe those facts in the light 10 most favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 11 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil 12 Procedure 12(b)(6)”). However, while the court has an “obligation ... where the 13 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally 14 and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338,342 15 (9th Cir. 2010), citingBretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985) (en 16 banc), it may not, in so doing, “supply essential elements of the claim that were not 17 initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 18 1982). “Section 1983 creates a private right of action against individuals who, acting 19 20 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 21 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 22 substantive rights, but merely provides a method for vindicating federal rights elsewhere 23 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 24 and citations omitted). “To establish § 1983 liability, a plaintiff must show both 25 (1) deprivation of a right secured by the Constitution and laws of the United States, and 26 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 27 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 28 III 4 3:16-cv-02884-BEN-BGS 1 B. 2 Plaintiff alleges that on June 18, 2016, he was transported to UCSD Hospital from Plaintiffs Allegations 3 the East Mesa Detention Facility due to a broken jaw. (See Compl. at 3.) After he was 4 admitted, Plaintiff alleges he was “sedated and had surgery.” (Id.) He later discovered 5 that he had “metal medical wires” in his mouth. (Id.) Sometime shortly after his surgery, 6 he was given medication and transported to GBDC where he was housed in the “medical 7 dorm.” (Id.) Plaintiff was also placed on a liquid food diet. (Id.) On July 15, 2016, 8 Plaintiff was removed from the liquid food diet and was transported back to UCSD 9 Hospital to have the wires removed from his mouth. (Id.) He was again admitted and 10 sedated. (Id.) He claims that when he awoke from sedation he discovered that the wires 11 had been removed. (Id.) Approximately two weeks later, on July 29, 2016, Plaintiff 12 claims he purchased apples from the canteen. (Id.) Plaintiff noticed that his gums were 13 bleeding and he found that he still had wires in his mouth that had not been removed. 14 (Id.) Plaintiff claims that this has caused him “excruciating” pain. (Id. at 4.) 15 He alleges violations of his “right to medical care, access to courts, due process, 16 freedom from cruel and unusual punishment, and malpractice.”2 (Id. at 3.) He is seeking 17 both punitive and compensatory damages. (Id. at 7.) 18 III 19 20 21 22 23 24 25 26 27 28 2 Even though Plaintiff refers to a number of different constitutional claims, his allegations only involve his claims relating to his medical care. The Supreme Court has held that “[i]f a constitutional claim is covered by a specific constitutional provision ... the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” County ofSacramento v. Lewis, 523 U.S. 833, 843 (1998) (internal quotation omitted); accord Albright v. Oliver, 510 U.S. 266, 272-73 (1994) (noting that when a broad “due process” violation is alleged, but a particular amendment “provides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing the[] claims.” (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Fontana v. Haskin, 262 F.3d 871, 882 (9th Cir. 2001). Therefore, the Court will analyze his claims as Eighth Amendment inadequate medical care claims. 5 3:16-cv-02884-BEN-BGS 1 C. 2 Plaintiffs only named Defendant is a hospital and he fails to identify any specific Individual Defendants 3 individual whom he claims was responsible for the alleged violations of his constitutional 4 rights. Therefore, the Court finds that Plaintiff fails to state a claim upon which § 1983 5 relief can be granted because he sets forth no individualized allegations of wrongdoing by 6 a specific individual. 7 Plaintiffs Complaint contains no factual allegations describing what any 8 individual knew, did, or failed to do, with regard to Plaintiffs medical needs. Estate of 9 Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a 10 required element of a § 1983 claim.”) “The inquiry into causation must be individualized 11 and focus on the duties and responsibilities of each individual defendant whose acts or 12 omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 13 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg 14 v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). 15 Thus, without some specific “factual content” that might allow the Court to “draw 16 the reasonable inference” that a specific individual may be held personally liable for any 17 unconstitutional conduct directed at Plaintiff, the Court finds his Complaint, as currently 18 pleaded, contains allegations which Iqbal makes clear fail to “state a claim to relief that is 19 plausible on its face.” Iqbal, 556 U.S. at 568. 20 D. 21 Plaintiff has also failed to state a claim based on a delay or denial of medical care. Inadequate medical care 22 Only “deliberate indifference to serious medical needs of prisoners constitutes the 23 unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle 24 v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted). “A 25 determination of ‘deliberate indifference’ involves an examination of two elements: the 26 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 27 that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other 28 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 6 3:16-CV-02884-BEN-BGS 1 Plaintiffs allegations regarding his injury are sufficient to plead the existence of an 2 objectively serious medical need. McGuckin, 974 F.2d at 1059-60 (“The existence of an 3 injury that a reasonable doctor or patient would find important and worthy of comment or 4 treatment; the presence of a medical condition that significantly affects an individual’s 5 daily activities; or the existence of chronic and substantial pain are examples of 6 indications that a prisoner has a ‘serious’ need for medical treatment.”) However, his 7 Complaint fails to include any further “factual content” to show that any specific 8 Defendant acted with “deliberate indifference to [his] serious medical needs.” Jett v. 9 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), quoting Gamble, 429 U.S. at 104. 10 The Complaint lacks any specific allegations that any individuals acted with 11 deliberate indifference to his plight by “knowing of and disregarding an excessive risk to 12 his health and safety.” Farmer, 511 U.S. at 837; Iqbal, 556 U.S. at 678; Twombly, 550 13 U.S. at 557. In fact, the allegations include negligence and medical malpractice, but a 14 § 1983 claim cannot sound merely in negligence. Farmer, 511 U.S. at 835 (holding that 15 a mere negligent failure to protect an inmate from harm is not actionable under § 1983); 16 Toguchi, 391 F.3d at 1057 (“Mere negligence in diagnosing or treating a medical 17 condition, without more, does not violate a prisoner’s Eighth Amendment rights.”), 18 quoting McGuckin, 974 F.2d at 1059. “Deliberate indifference,” on the other hand, “is a 19 high legal standard,” and claims of medical malpractice or negligence are insufficient to 20 establish a constitutional deprivation. Simmons, 609 F.3d at 1019, citing Toguchi, 391 21 F.3d at 1060. 22 If Plaintiff wishes to proceed with a claim for deliberate indifference to his serious 23 medical needs based on a lack of adequate medical care, he must identify the individuals 24 who he alleges knew of and deliberately disregarded his serious medical need medical 25 care, as well as how they became aware of that knowledge. Therefore, while the Court 26 finds Plaintiffs Complaint fails to state a claim upon which relief can be granted, it will 27 provide him a chance to fix the pleading deficiencies discussed in this Order, if he can. 28 7 3:16-cv-02884-BEN-BGS 1 See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 2 F.2d 1258, 1261 (9th Cir. 1992)). 3 E. 4 To the extent Plaintiff seeks to include state law claims based on the alleged 5 violation of state law, the Court exercises its discretion to dismiss Plaintiffs pendent state 6 law claims without prejudice because Plaintiff has not identified a violation of a federal 7 law. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise 8 supplemental jurisdiction over [state law claims] that are so related to claims in the action 9 within such original jurisdiction that they form part of the same case or controversy ... if 10 the district court has dismissed all claims over which it has original jurisdiction.”); United 11 Mine Workers ofAmerica v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are 12 dismissed before trial,... the state claims should be dismissed as well.”) 13 III. State Law Claims Conclusion and Orders 14 Good cause appearing, the Court: 15 1. GRANTS Plaintiffs Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 16 (Doc. No. 2). 17 2. DIRECTS the Watch Commander for the GBDC, or his designee, to collect 18 from Plaintiffs 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). 22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 23 Commander, George Bailey Detention Center, 446 Alta Road, Suite 5300, San Diego, 24 CA 92158. 25 4. DISMISSES Plaintiffs Complaint for failing to state a claim upon which 26 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS 27 him forty-five (45) days leave from the date of this Order in which to file an Amended 28 Complaint which cures all the deficiencies of pleading noted. Plaintiff s Amended 8 3:16-cv-02884-BEN-BGS 1 Complaint must be complete in itself without reference to his original pleading. 2 Defendants not named and any claims not re-alleged in the Amended Complaint will be 3 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. RichardFeiner 4 & Co., Inc., 896 F.2d 1542,1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 5 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 6 claims dismissed with leave to amend which are not re-alleged in an amended pleading 7 may be “considered waived if not repled.”) 8 9 10 5. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983” for his use in amending. 11 12 13 DATED: January / , 2017 HON, T. benite: United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:16-CV-02884-BEN-BGS

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