Parmer v. San Diego County Jail et al

Filing 7

ORDER: (1) Denying 6 Motion to Appoint Counsel and (2) Dismissing Complaint 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 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 8/29/2017. (All non-registered users served via U.S. Mail Service)(Complaint Form Mailed)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID EARL PARMER,
Booking # 16125004,

Case No.: 3:17-cv-0794-JLS-WVG
ORDER:

Plaintiff,

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vs.

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1) DENYING MOTION TO
APPOINT COUNSEL (ECF No. 6)

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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.

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I.

Procedural History

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On April 18, 2017, Plaintiff, David Earl Parmer, currently housed at the San Diego

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Central Jail, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) and a

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Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No.

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

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

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

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to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF No. 3.)
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Plaintiff was granted leave to file an amended complaint in order to correct the

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deficiencies of pleading identified in the Court’s Order. (Id. at 9.) Plaintiff has now filed

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a First Amended Complaint (“FAC”), along with a Motion to Appoint Counsel. (ECF Nos.

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4, 6.)

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II.

Motion to Appoint Counsel

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Plaintiff seeks appointment of counsel to assist him in this matter. (ECF No. 6.)

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However, there is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc.

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Servs., 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district courts have

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some limited discretion to “request” that an attorney represent an indigent civil litigant,

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Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion is

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rarely exercised and only under “exceptional circumstances.” Id.; see also Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances

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requires “an evaluation of the likelihood of the plaintiff’s success on the merits and an

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evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of the

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legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1986)).

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Applying these factors to Plaintiff’s case, the Court DENIES his Motion to Appoint

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Counsel because a liberal construction of his original pleadings shows he is capable of

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articulating the factual basis for his claims. All documents filed by pro se litigants are

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construed liberally, and “a pro se complaint, however inartfully pleaded, must be held to

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less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

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551 U.S. 89, 94 (2007). Moreover, Fed. R. Civ. P. 8(e) requires that “[p]leadings . . . be

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construed so as to do justice.”

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circumstances warrant the appointment of counsel in this case at this time. LaMere v.

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Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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Neither the interests of justice nor any exceptional

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III.

Sua Sponte Screening 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-Answer

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

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Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is

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frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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

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

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

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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 F.3d

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

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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 relief

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

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

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (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,

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

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

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

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

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

42 U.S.C. § 1983

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B.

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Once again, the Court finds that to the extent Plaintiff names the “San Diego County

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Jail” and the “San Diego Medical Office” as Defendants, his claims must be dismissed sua

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

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upon which § 1983 relief can be granted.

Improper Defendants & Municipal Liability

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Local law enforcement departments, like the San Diego Sheriff’s Department,

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municipal agencies, or subdivisions of that department or agency, are not proper defendants

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under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996)

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(“Naming a municipal department as a defendant is not an appropriate means of pleading

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a § 1983 action against a municipality.”) (citation omitted); Powell v. Cook County Jail,

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814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on any ‘person’

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who violates someone’s constitutional rights ‘under color of law.’ Cook County Jail is not

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a ‘person.’”).

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The County of San Diego itself may be considered a “person” and therefore, a proper

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defendant under § 1983, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);

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Hammond v. Cty. of Madera, 859 F.2d 797, 801 (9th Cir. 1988). As a municipality, the

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County may be held liable under § 1983–but only where the Plaintiff alleges facts to show

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that a constitutional deprivation was caused by the implementation or execution of “a

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policy statement, ordinance, regulation, or decision officially adopted and promulgated”

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by the County, or a “final decision maker” for the County. Monell, 436 U.S. at 690; Bd. of

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the Cty. Commissioners v. Brown, 520 U.S. 397, 402–04 (1997); Navarro v. Block, 72 F.3d
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712, 714 (9th Cir. 1995). In other words, “respondeat superior and vicarious liability are

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not cognizable theories of recovery against a municipality.” Miranda v. Clark Cty., Nev.,

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279 F.3d 1102, 1109-10 (9th Cir. 2002). “Instead, a Monell claim exists only where the

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alleged constitutional deprivation was inflicted in ‘execution of a government’s policy or

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custom.’” Id. (quoting Monell, 436 U.S. at 694).

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As currently pleaded, Plaintiff’s FAC fails to state a claim under 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b) because he has failed to allege any facts which “might

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plausibly suggest” that the County itself violated his constitutional rights. See Hernandez

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v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading standards

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to Monell claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42 U.S.C. § 1983

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provides for relief only against those who, through their personal involvement as evidenced

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by affirmative acts, participation in another’s affirmative acts, or failure to perform legally

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required duties, cause the deprivation of plaintiff’s constitutionally protected rights).

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C.

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Plaintiff offers very few specific factual details regarding his allegations. It does

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appear that he has requested a wheelchair but Defendant Berkmann told Plaintiff he did

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not need a wheelchair. (See FAC at 4.) Plaintiff also claims that Defendant Berkmann

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denied him medication but he then alleges that Defendant Berkmann did give him a shot

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of pain medication. (Id. at 4–5.) He further appears to allege that he is challenging the

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choice of pain medication prescribed by Defendant Berkmann and also claims he is denied

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physical therapy. (Id. at 5.)

Medical Care Claims

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

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facts in the light most favorable to him and find that he has alleged that his medical needs
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were 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 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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However, even if the Court assumes Plaintiff’s medical conditions were “objectively

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serious,” nothing in his FAC 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 order

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to show 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 (1991).

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The indifference to medical needs also must be substantial; inadequate treatment due to

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

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Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)

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(“Deliberate indifference is a high legal standard.” (citing Hallett v. Morgan, 296 F.3d 732,

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1204 (9th Cir. 2002)); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

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Here, while Plaintiff obviously disagrees with Defendant Berkmann’s assessment of

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his need for a certain type of medication to treat his pain, his disagreement, without more,

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does not provide sufficient “factual content” to plausibly suggest that his physician acted

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with deliberate indifference. Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin

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to a ‘probability requirement,’ but it ask for more than the sheer possibility that a defendant

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has acted unlawfully.”).

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“A difference of opinion between a physician and the prisoner–or between medical

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professionals–concerning what medical care is appropriate does not amount to deliberate

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

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891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23. Rather, Plaintiff “must

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show that the course of treatment the doctors chose was medically unacceptable under the

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circumstances and that the defendants chose this course in conscious disregard of an

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excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson v. McIntosh, 90 F.3d

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330, 332 (9th Cir. 1996)) (internal quotation marks omitted).

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Accordingly, the Court finds that Plaintiff has failed to adequately allege an

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inadequate medical care claim upon which § 1983 relief can be granted. See 28 U.S.C.

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§§ 1915(e)(2), 1915A(b).

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D.

Leave to Amend

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

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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 FAC 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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IV.

Conclusion and Order

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Good cause appearing, the Court:

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1.

DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 6).

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2.

DISMISSES Plaintiff’s FAC for failing to state a claim upon which § 1983

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relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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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 Cty., 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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4.

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. § 1983”

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for his use in amending.

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IT IS SO ORDERED.
Dated: August 29, 2017

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