Gilchrist v. Joshua et al

Filing 5

ORDER Dismissing 4 First Amended Complaint For Failing To State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) And § 1915A(b) filed by Morris B. Gilchrist. The Court dismisses Defendants Martinez, Tong, Santos, Evangelista, Prevost and Gore f rom this action. The Court Dismisses Plaintiff's First Amended Complaint for failing to state a claim and Grants him forty-five (45) days leave from the date of this Order to file an Amended Complaint. Signed by Judge Larry Alan Burns on 5/16/2017. (1983 Complaint Mailed to Plaintiff)(All non-registered users served via U.S. Mail Service)(lrf)

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

Plaintiff,

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

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

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I.

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

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(“SDCJ”). On March 9, 2017, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983,

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and requested leave to proceed in forma pauperis (“IFP”). (ECF Nos. 1, 2.) Because

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

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granted him leave to proceed without full prepayment of the civil filing fees required by

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28 U.S.C. § 1914(a), but dismissed his Complaint for failing to state a claim pursuant to

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28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF No. 3.)

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3:17-cv-0494-LAB-MDD

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However, Plaintiff was granted leave to file an amended complaint in order to

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correct the deficiencies of pleading identified in the Court’s Order. (Id. at 8.) In

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addition, the Court informed Plaintiff that any “[d]efendants not named and any claims

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not re-alleged in the Amended Complaint will be considered waived.” (Id., citing S.D.

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Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.

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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012).)

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On May 4, 2017, Plaintiff filed his First Amended Complaint (“FAC”). (ECF No.

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4.) In his FAC, Plaintiff no longer names Defendants Martinez, Tong, Santos,

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Evangelista, Prevost, and Gore in this action. (See FAC at 1-2.) Accordingly,

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Defendants Martinez, Tong, Santos, Evangelista, Prevost, and Gore are DISMISSED

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from this action. The Clerk of Court is directed to terminate these Defendants from the

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Court’s docket.

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II.

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Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
As the Court previously informed Plaintiff, because he is currently incarcerated

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and is proceeding IFP, his complaint requires a pre-answer screening pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte

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dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious,

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fails to state a claim, or seeks damages from defendants who are immune. See Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. §

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1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28

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U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous

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or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762

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F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689

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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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3:17-cv-0494-LAB-MDD

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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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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 is currently housed in the SDJC. (See FAC at 1.) Plaintiff claims that he

Plaintiff’s Allegations

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suffers from “severely torn tendons” in his “right shoulder rotator cuff.” (Id. at 7.)

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Plaintiff further claims that Defendant Alfred Joshua, SDCJ Chief Medical Officer, and

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Defendant Berkman, SDCJ Supervising Medical Officer, “refused to provide” Plaintiff

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with “medical relief.” (Id. at 8.) Specifically, Plaintiff argues that his injury requires
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surgery and claims his “primary Veteran Administration Physician” indicated that his

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injury would “become even more ‘serious’” if left “untreated.” (Id. at 9.) Plaintiff

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acknowledges that the three physicians have “very different medical opinions.” (Id. at

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10.)

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C.

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It is not clear whether Plaintiff is a pretrial detainee. The rights of pretrial

Inadequate Medical Care

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detainees are protected by the Fourteenth Amendment’s Due Process Clause, but the

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Court uses the standards for Eighth Amendment claims regarding allegations of pretrial

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detainees’ conditions of confinement claims. Simmons v. Navajo County, 609 F.3d

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1011, 1017-16 (9th Cir. 2010). Prison officials are liable only if they are deliberately

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indifferent to the prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-

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06 (1976); see also Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir.

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2010) (applying Estelle’s Eighth Amendment deliberate indifference standard to

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inadequate medical care claims alleged to violate a pretrial detainees’ due process rights).

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Here, Plaintiff alleges that he suffers from “severely torn tendons” in his “right

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shoulder rotator cuff.” (FAC at 7.) For the purposes of this stage of the screening

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process, the Court will view Plaintiff’s facts in the light most favorable to him and find

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that he has alleged that his medical needs were objectively serious. See McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) (defining a “serious medical need” as one

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which the “failure to treat ... could result in further significant injury or the ‘unnecessary

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and wanton infliction of pain.’”), overruled on other grounds by WMX Techs., Inc. v.

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Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (citing Estelle, 429 U.S. at 104); Iqbal,

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556 U.S. at 678 (“[A] complaint must contain sufficient factual matter, accepted as true,

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to ‘state a claim to relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at

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570).

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

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

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

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

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medical treatment.” McGuckin, 974 F.3d at 1059-60.

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

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nothing in his FAC supports a “reasonable inference that [any individual] defendant”

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

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deliberate indifference, an inmate must allege sufficient facts to indicate that prison

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officials acted with a culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 302

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(1991). The indifference to medical needs also must be substantial; inadequate treatment

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

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violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.

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2004) (“Deliberate indifference is a high legal standard.”) (citing Hallett v. Morgan, 296

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

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1990)).

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Plaintiff alleges that he has seen different physicians who do not agree as to the

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proper course of care for his medical need. However, a difference of opinion between a

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pretrial detainee and the doctors at the Jail as to the appropriate course or type of medical

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attention he requires does not amount to deliberate indifference, see Snow v. McDaniel,

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

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1989)), and any delay in providing an appropriate course of treatment does not by itself

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show deliberate indifference, unless the delay is alleged have caused harm. See

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McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d

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404, 407 (9th Cir. 1985). While he appears to allege that they have denied his request for

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surgery, Plaintiff does not allege that he was denied all forms of medical treatment as it

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relates to his shoulder injury.

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3:17-cv-0494-LAB-MDD

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Thus, Plaintiff has merely alleged a difference of opinion regarding his need for

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medical care, and has not alleged that Defendants acted with deliberate indifference to his

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plight by “knowing of and disregarding an excessive risk to his health and safety.” Farmer,

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511 U.S. at 837; Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557; Simmons, 609 F.3d at

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1019 (claims of medical malpractice, negligence or a difference of opinion concerning the

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course of treatment are insufficient to establish a constitutional deprivation).

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In addition, Plaintiff claims that he has received no treatment for his post-traumatic

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stress disorder. (See FAC at 14.) However, there are no other factual allegations regarding

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these claims and Plaintiff does not identify any particular individual as being responsible

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for allegedly failing to provide him with treatment. If Plaintiff wishes to proceed with a

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claim for deliberate indifference to his serious medical needs based on a failure to provide

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care for his medical conditions, he must not rely on conclusory allegations, but must allege

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facts which show that the Defendants knew of and deliberately disregarded his serious

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medical needs. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557; Farmer, 511 U.S. at

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837.

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Without more, the Court finds Plaintiff’s FAC currently amounts only to

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“unadorned, the defendant[s]-unlawfully-harmed-me accusation[s],” which “stop[] short

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of the line between possibility and plausibility of ‘entitlement to relief’” as to any

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constitutionally inadequate medical care claim. Iqbal, 556 U.S. at 678 (quoting Twombly,

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550 U.S. at 555, 557).

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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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III.

Conclusion and Orders

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Based on the forgoing, the Court:

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1.

DISMISSES Defendants Martinez, Tong, Santos, Evangelista, Prevost and

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Gore from this action. The Clerk of Court is directed to terminate these Defendants from

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the docket.

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2.

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

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

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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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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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Dated: May 16, 2017

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Hon. Larry Alan Burns
United States District Judge

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3:17-cv-0494-LAB-MDD