Gilchrist v. Joshua et al

Filing 3

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Watch Commander at the SDCJ, 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 paym ents 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). The Court directs the Clerk of the Court to serve a copy of this Order on the Watch Commander, San Diego Central Jail. The Court dismisses Plaintiff's Complaint for failing to state a claim upon which relief may be granted pursuant to 28 U.S. C. § 1915(e)(2) and § 1915A(b), and GRANTS him forty-five (45) days leave from the date of this Order in which to file an Amended Complaint. Signed by Judge Larry Alan Burns on 4/20/17. (All non-registered users served via U.S. Mail Service)(form 1983 also mailed to plaintiff)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MORRIS GILCHRIST,
Booking # 16179894,
vs.

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ORDER:

Plaintiff,

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Case No.: 3:17-cv-0494-LAB-MDD

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[Doc. No. 2]; AND

ALFRED JOSHUA; BERKMAN;
MARTINEZ; TONG; SANTOS;
EVANGELISTA; PREVOST; GORE,

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

Defendants.

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Plaintiff, Morris B. Gilchrist, is currently housed at the San Diego Central Jail

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(“SDCJ”). He has filed a Complaint pursuant to 42 U.S.C. § 1983, and requests leave to

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proceed in forma pauperis (“IFP”) (Doc. Nos. 16). Because Plaintiff’s motion to proceed

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IFP complies with 28 U.S.C. § 1915(a)(2), the Court grants him leave to proceed without

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full prepayment of the civil filing fees required by 28 U.S.C. § 1914(a), but dismisses his

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Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).

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3:17-cv-0494-LAB-MDD

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A.

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Plaintiff’s IFP Motion
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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$400.1 See 28 U.S.C. § 1914(a). The 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 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo,

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775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately

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dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th

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Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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

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Bruce, 136 S. Ct. at 629.

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In addition to the $350 statutory fee, 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.
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3:17-cv-0494-LAB-MDD

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In support of his IFP motion, Plaintiff has submitted a prison certificate which has

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been completed by an administrative lieutenant with the San Diego County Sheriff’s

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Department. See Doc. No. 2 at 5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2;

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Andrews, 398 F.3d at 1119. This statement shows that Plaintiff’s current available

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balance in his trust account is $0.13 (Doc. No. 2 at 5), and it appears Plaintiff is unable to

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pay any initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event

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

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

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pay [a] initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850

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(finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a

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prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available

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to him when payment is ordered.”).
Therefore, the Court grants Plaintiff leave to proceed IFP, declines to “exact” any

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initial filing fee because his trust account statement shows he “has no means to pay it,”

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Bruce, 136 S. Ct. at 629, and directs the Watch Commander at SDCJ to collect the entire

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$350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the

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Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C.

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§ 1915(b)(1). See id.

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B.

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Legal Standards for Screening Complaint Pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)
Because Plaintiff is a prisoner and is proceeding IFP, his complaint 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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3:17-cv-0494-LAB-MDD

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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 “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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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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C.

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

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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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3:17-cv-0494-LAB-MDD

Plaintiff’s Allegations

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Plaintiff is currently housed at the SDCJ. (See Compl. at 1.) Plaintiff claims that

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he suffers from a “torn rotator cuff” and has sought medical treatment from various SDCJ

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medical personnel. (Id. at 4-6.) Plaintiff further claims that he has been refused

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treatment by several individuals in violation of his Eighth and Fourteenth Amendment

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rights. (Id.) Plaintiff seeks to have his torn rotator cuff “surgically repaired,” along with

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compensatory and punitive damages. (Id. at 8.)

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

Inadequate Medical Care

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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 alleges that he suffers from a “torn rotator cuff.” (Compl. at 6.) For

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the purposes of this stage of the screening process, the Court will view Plaintiff’s facts in

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the light most favorable to him and find that he has alleged that his medical needs were

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objectively serious. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991)

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(defining a “serious medical need” as one which the “failure to treat ... could result in

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further significant injury or the ‘unnecessary and wanton infliction of pain.’”), overruled

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

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(citing Estelle, 429 U.S. at 104); Iqbal, 556 U.S. at 678 (“[A] complaint must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’”) (quoting Twombly, 550 U.S. at 570). The “existence of an injury that a

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

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the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain are examples of indications that

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

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3:17-cv-0494-LAB-MDD

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However, even assuming Plaintiff’s medical condition is “objectively serious,”

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nothing in his Complaint supports a “reasonable inference that [any individual]

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defendant” acted with deliberate indifference to his plight. Iqbal, 556 U.S. at 678. “In

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order to show deliberate indifference, an inmate must allege sufficient facts to indicate

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that prison officials acted with a culpable state of mind.” Wilson v. Seiter, 501 U.S. 294,

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302 (1991). 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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Here, Plaintiff has named as Defendants Tong, Santos, Evangelista, Provost and

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Gore as Defendants but he fails to identify in any way what these Defendants are alleged

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to have done, or not done, with respect to his medical care. He must provide specific

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factual allegations as to how these individuals were “deliberately indifferent” to his

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serious medical needs.

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In addition, Plaintiff is seeking surgery for his medical needs. However, a

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difference of opinion between a pretrial detainee and the doctors at the Jail as to the

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appropriate course or type of medical attention he requires does not amount to deliberate

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indifference, see Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989)), and any delay in providing an appropriate

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course of treatment does not by itself show deliberate indifference, unless the delay is

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alleged have caused harm. See McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of

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State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Without more, Plaintiff’s

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Complaint currently amounts only to “unadorned, the defendant[s]-unlawfully-harmed-

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me accusation[s],” which “stop[] short of the line between possibility and plausibility of

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‘entitlement to relief’” as to any constitutionally inadequate medical care claim. Iqbal,

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556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).
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3:17-cv-0494-LAB-MDD

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Finally, as to Defendant Bill Gore, Plaintiff’s complaint also fails to state a claim

Vicarious Liability

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upon which § 1983 relief can be granted, because it contains no individualized factual

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allegations of wrongdoing by this Defendant.
“Because vicarious liability is inapplicable to . . . § 1983 suits,” Plaintiff “must

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plead that each Government-official defendant, though the official’s own individual

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actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff’s Complaint,

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however, contains no further “factual enhancement” to describe what these defendants

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did, or failed to do in connection with the claims in his complaint. Estate of Brooks v.

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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)).
Thus, without some specific “factual content” that might allow the Court to “draw

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

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unconstitutional conduct directed at Plaintiff, the Court finds his Complaint fails to “state

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a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678.

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4.

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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”). While the Court finds Plaintiff’s Complaint fails to state

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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.

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3:17-cv-0494-LAB-MDD

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D.

Conclusion and Orders

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Based on the forgoing, the Court:

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1.

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(Doc. No. 2).

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2.

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

DIRECTS the Watch Commander at the SDCJ, or his or her designee, to

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

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garnishing monthly payments from his account in an amount equal to twenty percent

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(20%) of the preceding month’s income and forwarding those payments to the Clerk of

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the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C.

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§ 1915(b)(2).

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3.

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DIRECTS the Clerk of the Court to serve a copy of this Order on the Watch

Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101.
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DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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

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

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

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

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

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

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

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5.

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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Dated: April 20, 2017

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Hon. Larry Alan Burns
United States District Judge

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3:17-cv-0494-LAB-MDD