Shufelt v. Silva et al

Filing 4

ORDER: 1) Granting 3 Motion to Proceed in Forma Pauperis and 2) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Secretary CDCR, or his designee, is ordered to collect from priso n trust account the $350 balance of the filing fee owed in this case by collecting monthly payments 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 Clerk of the Court is directed to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 942 83-0001. The Court Grants Plaintiff forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures all the deficiencies of pleading noted. The Clerk of Court is directed to mail Plaintiff a court approved civil rights complaint form for his use in amending. Signed by Judge Larry Alan Burns on 09/25/2017. (Order electronically transmitted and mailed via U.S. Mail Service to Secretary of CDCR) (Plaintiff served copy of this Order and blank civil rights complaint form via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE W. SHUFELT,
CDCR #T-65128,

Case No.: 3:17-cv-01652-LAB-PCL
ORDER:

Plaintiff,

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vs.

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1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 3]

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J. SILVA; S. PASHA; M GLYNN; S.
ROBERTS; R. WALKER; J. LEWIS; R.
ZHANG

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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George W. Shufelt (“Plaintiff”), proceeding pro se, is currently incarcerated at

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High Desert State Prison in Susanville, California, and has filed a civil rights Complaint

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(“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims that his Eighth

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Amendment rights were violated when he was housed at the Richard J. Donovan

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Correctional Facility (“RJD”) in 2014 and 2015. Plaintiff seeks twenty (20) million

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dollars in compensatory damages. (See Compl. at 7.)

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3:17-cv-01652-LAB-PCL

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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the

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time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 3).

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I.

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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). However, a

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prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in

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“increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629

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(2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

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whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

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Delatoore, 281 F.3d 844, 847 (9th 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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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. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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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 support of his IFP Motion, Plaintiff has submitted a certified copy of his CDCR

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Inmate Statement Report showing his trust account activity at the time of filing. See ECF

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No. 2 at 4-5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119.

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This statement shows Plaintiff has an available balance of zero (ECF No. 2 at 1). See 28

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U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from

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bringing a civil action or appealing a civil action or criminal judgment for the reason that

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the prisoner has no assets and no means by which to pay the initial partial filing fee.”);

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Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4)

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acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a

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“failure to pay ... due to the lack of funds available to him when payment is ordered.”).

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Therefore, the Court grants Plaintiff’s Motion 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 Secretary of the CDCR to collect the entire $350

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

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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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II.

Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the

Standard of Review

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PLRA also obligates the Court to review complaints filed by all persons proceeding IFP

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and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]

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accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

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terms or conditions of parole, probation, pretrial release, or diversionary program,” “as

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soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under

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these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,
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which are frivolous, malicious, fail to state a claim, or which seek damages from

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defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.

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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.

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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

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a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

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the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

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possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their

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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled.” Ivey v. Board of

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Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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3:17-cv-01652-LAB-PCL

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B.

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In December 2013, Plaintiff “felt a sharp pain running down his left sciatic nerve

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root which became more debilitating each day.” (Compl. at 10.) Plaintiff was given an

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MRI in February of 2014. (Id. at 12.) In June of 2014, Plaintiff was given a wheelchair.

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(Id. at 13.) Plaintiff later filed a “request for accommodation” in which he requested to

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be provided with surgery for his back. (Id.) Plaintiff was then examined by Dr. Dean 2

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who determined that Plaintiff should be “seen by an orthopedic surgeon based on his

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MRI results.” (Id. at 14.) Plaintiff was subsequently examined by Dr. Yoo 3 who

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discussed the possibility of surgical treatment with Plaintiff. (Id. at 16.) In addition,

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Plaintiff’s Allegations

Plaintiff alleges Dr. Yoo recommended “narcotics for pain.” (Id.)

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Plaintiff was examined by Defendant Pasha, a nurse practitioner, on September 8,

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2014. (Id. at 17.) Plaintiff claims Pasha agreed “Plaintiff needed a narcotic for pain and

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ordered” a prescription for morphine. (Id.) Pasha submitted a request for Plaintiff to

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obtain surgery. (Id.) However, on October 6, 2014, Plaintiff’s surgery was cancelled

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without explanation. (Id. at 18.) Plaintiff was again seen by Dr. Yoo who reported that

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he had previously believed that Plaintiff should undergo surgery but due to other medical

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conditions Dr. Yoo believed that he should perform a different procedure prior to

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undergoing surgery. (Id. at 20.) However, Plaintiff maintains he did not agree to any

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procedure other than surgery. (Id.) Plaintiff was then scheduled for a “nerve root block”

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by Defendant Pasha but Plaintiff refused to let them perform this procedure. (Id.)

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In November of 2014, Plaintiff’s need for pain medications was reviewed by

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Pasha. (Id. at 22.) Based on a blood draw and lab reports, it was determined that

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Plaintiff was not taking his morphine and therefore, it was discontinued. (Id.) Plaintiff

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disputes that finding and claims he was taking his morphine. (Id.) Plaintiff further

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asserts that instead of taking his morphine away, there were other methods that could

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Dr. Dean is not a named Defendant.
Dr. Yoo is not a named Defendant.
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3:17-cv-01652-LAB-PCL

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have been used to address the concerns that Plaintiff was distributing his morphine to

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other inmates. (Id.) Plaintiff was prescribed “Lyrica” but claims that this medication was

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not effective for his pain. (Id. at 25.) Plaintiff claims Defendants denied “surgery at all

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costs, because they didn’t want to give Shufelt any pain medication after the surgery.”

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(Id. at 32.) Plaintiff was transferred to High Desert State Prison on November 3, 2016.

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(Id. at 44.)

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C.

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As an initial matter, the Court finds that Plaintiff’s Complaint fails to comply with

Rule 8

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Rule 8. Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a

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claim for relief in a pleading it must contain “a short and plain statement of the grounds

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for the court’s jurisdiction” and “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). In addition, “the pleading

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standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands

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more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556

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U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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Plaintiff is also admonished that he must comply with Local Rule 8.2 which

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requires, in part, that “[c]omplaints by prisoners under the Civil Rights Act, 42 U.S.C.

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§ 1983, must be legibly written or typewritten on forms supplied by the court” and

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“[a]dditional pages not to exceed fifteen (15) in number may be included with the court

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approved form complaint, provided the form is completely filled ion to the extent

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applicable.” S.D. CivLr 8.2(a). Here, Plaintiff has failed to use the Court’s form

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complaint and has filed a sixty one (61) page Complaint, which well exceeds the number

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of pages permitted by the local rule.

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D.

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“Section 1983 creates a private right of action against individuals who, acting

42 U.S.C. § 1983

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere
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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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D.

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There is no question that prison officials act “under color of state law” when

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housing and providing medical care to prisoners. See West v. Atkins, 487 U.S. 42, 49-50

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(1988) (“[G]enerally, a public employee acts under color of state law while acting in his

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Eighth Amendment Medical Care Claims

official capacity or while exercising his responsibilities pursuant to state law.”).

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Therefore, in order to determine whether Plaintiff has pleaded a plausible claim for

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relief based on alleged denials of medical care, the Court must review his Complaint and

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decide whether it contains sufficient “factual content that allows [it] to draw the

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reasonable inference” that “each Government-official defendant, through the official’s

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own individual actions, has violated the Constitution,” and thus, may be held “liable for

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the misconduct alleged.” Iqbal, 556 U.S. 676, 678.

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Only “deliberate indifference to serious medical needs of prisoners constitutes the

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unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.”

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Estelle, 429 U.S. at 103, 104 (citation and internal quotation marks omitted). “A

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determination of ‘deliberate indifference’ involves an examination of two elements: (1)

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the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s

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response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991),

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

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(en banc) (quoting Estelle, 429 U.S. at 104).

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“Because society does not expect that prisoners will have unqualified access to

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health care, deliberate indifference to medical needs amounts to an Eighth Amendment

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violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992),

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citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat

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a prisoner’s condition could result in further significant injury or the ‘unnecessary and

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wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at

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104). “The existence of an injury that a reasonable doctor or patient would find important

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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.” Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir.

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1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989).

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At the screening stage of these proceedings, the Court will assume that Plaintiff’s

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allegation of having suffered back pain enough to require surgery is sufficient to show he

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suffered an objectively serious medical need. McGuckin, 914 F.2d at 1059. However,

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even assuming Plaintiff’s medical needs were sufficiently serious, his Complaint fails to

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include any further “factual content” to show that any of the named Defendants acted

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with “deliberate indifference” to those needs. McGuckin, 914 F.2d at 1060; see also Jett

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v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678.

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Throughout his Complaint, Plaintiff objects to the decisions made by RJD prison

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staff as it related to his medical condition. Plaintiff admits that he was scheduled for

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surgery, which is the crux of his complaint, but that it was cancelled because he refused

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to allow a treatment that was determined necessary to perform before his surgery. (See

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Compl. at 26.) Plaintiff also disagrees with the Defendants decision to change his pain

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medication. (Id. at 25.) However, “[a] difference of opinion between a physician and the

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prisoner–or between medical professionals–concerning what medical care is appropriate

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does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23
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(9th Cir. 2012). Here, the Court finds that Plaintiff has failed to plead facts sufficient to

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

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the 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 (citation and internal quotations

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omitted).

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Plaintiff also seeks to hold Defendants Glynn, Roberts, Walker and Lewis liable

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for their role in responding to his administrative grievances. However, alleging that the

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response to his grievances was inadequate is insufficient to find an Eighth Amendment

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violation. See Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (Finding no Eighth

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Amendment deliberate indifference claim arising from a physician’s response to a

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grievance where they relied on the medical opinions of staff who investigated the

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plaintiff’s “complaints and already signed off on the treatment plan.”)).

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Accordingly, the Court finds that Plaintiff’s Complaint fails to state an Eighth

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Amendment inadequate medical care claim against any of the named Defendants, and

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that therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C.

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§ 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d

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at 1004. Because he is proceeding pro se, however, the Court having now provided him

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with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity

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to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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III.

Conclusion and Order

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For the reasons explained, the Court:

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1.

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

(ECF No. 2);
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DIRECTS the Secretary of the CDCR, or his designee, to collect from

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

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monthly payments from his account in an amount equal to twenty percent (20%) of the

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preceding month’s income and forwarding those payments to the Clerk of the Court each
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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

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PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

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ASSIGNED TO THIS ACTION;

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3.

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

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;
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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)(B) and § 1915A(b), and

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

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

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Amended Complaint must be complete by itself without reference to his original

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pleading. Defendants not named and any claim not re-alleged in his Amended Complaint

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will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard

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

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

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(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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5.

The Clerk of Court is directed to mail Plaintiff a court approved civil rights

complaint form for his use in amending.
IT IS SO ORDERED.

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Dated: September 25, 2017
HON. LARRY ALAN BURNS
United States District Judge

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