Parmer v. San Diego County Jail et al

Filing 3

ORDER: 1) Granting 2 Motion for Leave to Proceed in forma pauperis And 2) Dismissing Complaint for Failing to State a Claim. Watch Commander of the San Diego Central Jail, or his designee, is ordered to collect from plaintiff's trust acco unt the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to 20% of the preceding month income and forwarding those payments to the Clerk of the Court each time the amount in the accoun t exceeds $10 in accordance with 28 USC 1915(b)(2). The Court grants Plaintiff forty-five (45) days leave in which to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned, however, that should he choose to file an Amended Complaint, it must be complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-alleged will be considered waived. Signed by Judge Janis L. Sammartino on 5/24/2017. (Watch commander served)(All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DAVID EARL PARMER, Booking # 16125004, ORDER: Plaintiff, 13 14 Case No.: 3:17-cv-0794-JLS-WVG vs. 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 2) 15 16 17 SAN DIEGO COUNTY JAIL; SAN DIEGO MEDICAL OFFICE; DOCTOR BERKMANN AND 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) Defendants. 18 19 20 21 22 Plaintiff David Earl Parmer, currently housed at the San Diego Central Jail, has filed 23 a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a Motion to Proceed 24 In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Because 25 Plaintiff’s Motion to Proceed IFP complies with 28 U.S.C. § 1915(a)(2), the Court grants 26 him leave to proceed without full prepayment of the civil filing fees required by 28 U.S.C. 27 § 1914(a), but dismisses his Complaint for failing to state a claim pursuant to 28 U.S.C. § 28 1915(e)(2) and § 1915A(b). 1 3:17-cv-0794-JLS-WVG 1 I. Plaintiff’s IFP Motion 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 8 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 9 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 10 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 11 See 28 U.S.C. §§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 23 /// 24 25 26 27 28 1 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. 2 3:17-cv-0794-JLS-WVG 1 In support of his IFP Motion, Plaintiff has submitted a certified prison certificate, 2 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. (See ECF No. 2, at 5); 3 Andrews, 398 F.3d at 1119. This certificate shows that while Plaintiff had an average 4 monthly deposit of $46.00 and an average monthly balance of $41.50 in his trust account 5 during the 6-month period preceding the filing of this action, he only has an available 6 balance of $1.03 at the time of filing. Therefore, the Court assesses Plaintiff’s initial partial 7 filing fee to be $9.20 pursuant to 28 U.S.C. § 1915(b)(1). However, it appears Plaintiff may 8 be unable to pay that initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that 9 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 10 action or criminal judgment for the reason that the prisoner has no assets and no means by 11 which to pay the initial partial filing fee”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 12 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 13 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 14 to him when payment is ordered”). 15 Therefore, the Court GRANTS Plaintiff leave to proceed IFP, declines to “exact” 16 the initial $9.20 filing fee because his prison certificate shows he “has no means to pay it,” 17 Bruce, 136 S. Ct. at 629, and DIRECTS the Watch Commander at the San Diego Central 18 Jail to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and 19 forward them to the Clerk of Court pursuant to the installment payment provisions set forth 20 in 28 U.S.C. § 1915(b)(1). See id. 21 II. 22 Legal Standards for Screening Complaint Pursuant to §§ 1915(e)(2)(B) and 1915A(b) 28 U.S.C. 23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 24 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 25 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 26 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 27 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 3 3:17-cv-0794-JLS-WVG 1 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 2 targets of frivolous or malicious suits need not bear the expense of responding.’” 3 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 4 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 9 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 17 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 19 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 20 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 21 A. 22 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 23 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt 24 v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must allege 25 two essential elements: (1) that a right secured by the Constitution or laws of the United 26 States was violated, and (2) that the alleged violation was committed by a person acting 27 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 28 /// 42 U.S.C. § 1983 4 3:17-cv-0794-JLS-WVG 1 B. 2 The Court finds that to the extent Plaintiff names the “San Diego County Jail” and 3 the “San Diego Medical Office” as Defendants, his claims must be dismissed sua sponte 4 pursuant to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim upon 5 which § 1983 relief can be granted. Improper Defendants & Municipal Liability 6 Local law enforcement departments, like the San Diego Sheriff’s Department, 7 municipal agencies, or subdivisions of that department or agency, are not proper defendants 8 under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) 9 (“Naming a municipal department as a defendant is not an appropriate means of pleading 10 a § 1983 action against a municipality.”) (citation omitted); Powell v. Cook County Jail, 11 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’ 12 who violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not 13 a ‘person.’”). 14 The County of San Diego itself may be considered a “person” and therefore, a proper 15 defendant under § 1983. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978); 16 Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988). As a municipality, the 17 County may be held liable under § 1983–but only where the Plaintiff alleges facts to show 18 that a constitutional deprivation was caused by the implementation or execution of “a 19 policy statement, ordinance, regulation, or decision officially adopted and promulgated” 20 by the County, or a “final decision maker” for the County. Monell, 436 U.S. at 690; Bd. of 21 the Cty. Commissioners v. Brown, 520 U.S. 397, 402–04 (1997); Navarro v. Block, 72 F.3d 22 712, 714 (9th Cir. 1995). In other words, “respondeat superior and vicarious liability are 23 not cognizable theories of recovery against a municipality.” Miranda v. Clark Cty., Nev., 24 279 F.3d 1102, 1109–10 (9th Cir. 2002). “Instead, a Monell claim exists only where the 25 alleged constitutional deprivation was inflicted in ‘execution of a government’s policy or 26 custom.’” Id. (quoting Monell, 436 U.S. at 694). 27 /// 28 /// 5 3:17-cv-0794-JLS-WVG 1 As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C. §§ 2 1915(e)(2) and 1915A(b) because he has failed to allege any facts which “might plausibly 3 suggest” that the County itself violated his constitutional rights. See Hernandez v. County 4 of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading standards to Monell 5 claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42 U.S.C. § 1983 provides 6 for relief only against those who, through their personal involvement as evidenced by 7 affirmative acts, participation in another’s affirmative acts, or failure to perform legally 8 required duties, cause the deprivation of plaintiff’s constitutionally protected rights). 9 C. Medical Care Claims 10 Plaintiff’s allegations are far from clear. However, it appears that Plaintiff was 11 allegedly accused of hoarding medication and as a result, Defendant Berkmann allegedly 12 stopped providing this medication to Plaintiff. (See Compl. at 3.) Plaintiff claims that the 13 medication “help[ed] a lot with the pain.” (Id.) Plaintiff claims he was provided with 14 different medication but that it gives him “no relief” from his pain.” (Id. at 4.) Plaintiff 15 claims that Defendant Berkmann gave him a “shot of teridol” on April 9, 2017 but claims 16 Defendant Berkmann knew it “was not really going to help.” (Id.) Plaintiff alleges he 17 suffers from “spinal stenosis” and “lipomatosis.” (Id.) 18 Prison officials are liable only if they are deliberately indifferent to the prisoner’s 19 serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); see also Clouthier 20 v. Cty. of Contra Costa, 591 F.3d 1232, 1241–44 (9th Cir. 2010) (applying Estelle’s Eighth 21 Amendment deliberate indifference standard to inadequate medical care claims alleged to 22 violate a pretrial detainees’ due process rights). 23 Here, Plaintiff claims he suffers from “spinal stenosis” but he fails to include any 24 further “factual matter” sufficient to show or describe how or to what extent his medical 25 needs were objectively serious. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 26 1991) (defining a “serious medical need” as one which the “failure to treat . . . could result 27 in further significant injury or the ‘unnecessary and wanton infliction of pain.’”), overruled 28 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) 6 3:17-cv-0794-JLS-WVG 1 (citing Estelle, 429 U.S. at 104); Iqbal, 556 U.S. at 678 (“[A] complaint must contain 2 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 3 face.’”) (quoting Twombly, 550 U.S. at 570). The “existence of an injury that a reasonable 4 doctor or patient would find important and worthy of comment or treatment; the presence 5 of a medical condition that significantly affects an individual’s daily activities; or the 6 existence of chronic and substantial pain are examples of indications that a prisoner has a 7 ‘serious’ need for medical treatment.” McGuckin, 974 F.3d at 1059–60. 8 Moreover, even if the Court assumes Plaintiff’s medical conditions were 9 “objectively serious,” nothing in his Complaint supports a “reasonable inference that [any 10 individual] defendant” acted with deliberate indifference to his plight. Iqbal, 556 U.S. at 11 678. “In order to show deliberate indifference, an inmate must allege sufficient facts to 12 indicate that prison officials acted with a culpable state of mind.” Wilson v. Seiter, 501 13 U.S. 294, 302 (1991). The indifference to medical needs also must be substantial; 14 inadequate treatment due to malpractice, or even gross negligence, does not amount to a 15 constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060 16 (9th Cir. 2004) (“Deliberate indifference is a high legal standard.” (citing Hallett v. 17 Morgan, 296 F.3d 732, 1204 (9th Cir. 2002)); Wood v. Housewright, 900 F.2d 1332, 1334 18 (9th Cir. 1990)). 19 Here, while Plaintiff obviously disagrees with Defendant Berkmann’s assessment of 20 his need for a certain type of medication to treat his pain, his disagreement, without more, 21 does not provide sufficient “factual content” to plausibly suggest that his physician acted 22 with deliberate indifference. Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin 23 to a ‘probability requirement,’ but it ask for more than the sheer possibility that a defendant 24 has acted unlawfully.”). 25 “A difference of opinion between a physician and the prisoner–or between medical 26 professionals–concerning what medical care is appropriate does not amount to deliberate 27 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 28 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122–23. Rather, Plaintiff “must 7 3:17-cv-0794-JLS-WVG 1 show that the course of treatment the doctors chose was medically unacceptable under the 2 circumstances and that the defendants chose this course in conscious disregard of an 3 excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson v. McIntosh, 90 F.3d 4 330, 332 (9th Cir. 1996)) (internal quotation marks omitted). 5 Accordingly, the Court finds that Plaintiff has failed to adequately allege an 6 inadequate medical care claim upon which § 1983 relief can be granted. See 28 U.S.C. 7 §§ 1915(e)(2), 1915A(b). 8 D. Leave to Amend 9 A pro se litigant must be given leave to amend his or her complaint to state a claim 10 unless it is absolutely clear the deficiencies of the complaint cannot be cured by 11 amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when 12 a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the 13 plaintiff can correct the defect”). Therefore, while the Court finds Plaintiff’s Complaint 14 fails to state any claim upon which relief can be granted, it will provide him a chance to fix 15 the pleading deficiencies discussed in this Order. See Akhtar v. Mesa, 698 F.3d 1202, 1212 16 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 17 III. Conclusion and Order 18 Good cause appearing, the Court: 19 1. 20 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 21 2. DIRECTS the Watch Commander of the San Diego Central Jail, or his 22 designee, to collect from Plaintiff’s trust account the $350 filing fee owed in this case by 23 garnishing monthly payments from his account in an amount equal to twenty percent (20%) 24 of the preceding month’s income and forwarding those payments to the Clerk of the Court 25 each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 26 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 27 ASSIGNED TO THIS ACTION. 28 /// 8 3:17-cv-0794-JLS-WVG 1 2 3 4 5 3. DIRECTS the Clerk of Court to serve a copy of this Order on the Watch Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101. 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 5. GRANTS Plaintiff forty-five (45) days leave in which to file an Amended 6 Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is 7 cautioned, however, that should he choose to file an Amended Complaint, it must be 8 complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim 9 not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 10 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 11 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 12 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 13 amended pleading may be “considered waived if not repled.”). 14 6. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a 15 blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. § 1983” 16 for his use in amending. 17 18 IT IS SO ORDERED. Dated: May 24, 2017 19 20 21 22 23 24 25 26 27 28 9 3:17-cv-0794-JLS-WVG

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