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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 GEORGE W. SHUFELT, CDCR #T-65128, Case No.: 3:17-cv-01652-LAB-PCL ORDER: Plaintiff, 12 vs. 13 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 3] 14 15 16 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. 17 18 19 20 21 George W. Shufelt (“Plaintiff”), proceeding pro se, is currently incarcerated at 22 High Desert State Prison in Susanville, California, and has filed a civil rights Complaint 23 (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims that his Eighth 24 Amendment rights were violated when he was housed at the Richard J. Donovan 25 Correctional Facility (“RJD”) in 2014 and 2015. Plaintiff seeks twenty (20) million 26 dollars in compensatory damages. (See Compl. at 7.) 27 /// 28 /// 1 3:17-cv-01652-LAB-PCL 1 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 2 time of filing, but instead has filed a Motion to Proceed In Forma Pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a) (ECF No. 3). 4 I. 5 IFP Motion All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, a 10 prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in 11 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 12 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 13 whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 14 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 17 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly 21 balance in the account for the past six months, whichever is greater, unless the prisoner 22 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 23 custody of the prisoner then collects subsequent payments, assessed at 20% of the 24 25 1 26 27 28 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. 2 3:17-cv-01652-LAB-PCL 1 preceding month’s income, in any month in which his account exceeds $10, and forwards 2 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 3 Bruce, 136 S. Ct. at 629. 4 In support of his IFP Motion, Plaintiff has submitted a certified copy of his CDCR 5 Inmate Statement Report showing his trust account activity at the time of filing. See ECF 6 No. 2 at 4-5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. 7 This statement shows Plaintiff has an available balance of zero (ECF No. 2 at 1). See 28 8 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 9 bringing a civil action or appealing a civil action or criminal judgment for the reason that 10 the prisoner has no assets and no means by which to pay the initial partial filing fee.”); 11 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 12 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 13 “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 14 Therefore, the Court grants Plaintiff’s Motion to Proceed IFP, declines to exact any 15 initial filing fee because his trust account statement shows he “has no means to pay it,” 16 Bruce, 136 S. Ct. at 629, and directs the Secretary of the CDCR to collect the entire $350 17 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of 18 the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 19 § 1915(b)(1). See id. 20 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 21 A. 22 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the Standard of Review 23 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 24 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] 25 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 26 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 27 soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under 28 these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, 3 3:17-cv-01652-LAB-PCL 1 which are frivolous, malicious, fail to state a claim, or which seek damages from 2 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. 3 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. 4 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 5 All complaints must contain “a short and plain statement of the claim showing that 6 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 10 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 11 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 12 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 13 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 14 “When there are well-pleaded factual allegations, a court should assume their 15 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 16 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 17 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 18 allegations of material fact and must construe those facts in the light most favorable to 19 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 20 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 21 However, while the court “ha[s] an obligation where the petitioner is pro se, 22 particularly in civil rights cases, to construe the pleadings liberally and to afford the 23 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 24 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 25 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 26 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 27 /// 28 /// 4 3:17-cv-01652-LAB-PCL 1 B. 2 In December 2013, Plaintiff “felt a sharp pain running down his left sciatic nerve 3 root which became more debilitating each day.” (Compl. at 10.) Plaintiff was given an 4 MRI in February of 2014. (Id. at 12.) In June of 2014, Plaintiff was given a wheelchair. 5 (Id. at 13.) Plaintiff later filed a “request for accommodation” in which he requested to 6 be provided with surgery for his back. (Id.) Plaintiff was then examined by Dr. Dean 2 7 who determined that Plaintiff should be “seen by an orthopedic surgeon based on his 8 MRI results.” (Id. at 14.) Plaintiff was subsequently examined by Dr. Yoo 3 who 9 discussed the possibility of surgical treatment with Plaintiff. (Id. at 16.) In addition, 10 Plaintiff’s Allegations Plaintiff alleges Dr. Yoo recommended “narcotics for pain.” (Id.) 11 Plaintiff was examined by Defendant Pasha, a nurse practitioner, on September 8, 12 2014. (Id. at 17.) Plaintiff claims Pasha agreed “Plaintiff needed a narcotic for pain and 13 ordered” a prescription for morphine. (Id.) Pasha submitted a request for Plaintiff to 14 obtain surgery. (Id.) However, on October 6, 2014, Plaintiff’s surgery was cancelled 15 without explanation. (Id. at 18.) Plaintiff was again seen by Dr. Yoo who reported that 16 he had previously believed that Plaintiff should undergo surgery but due to other medical 17 conditions Dr. Yoo believed that he should perform a different procedure prior to 18 undergoing surgery. (Id. at 20.) However, Plaintiff maintains he did not agree to any 19 procedure other than surgery. (Id.) Plaintiff was then scheduled for a “nerve root block” 20 by Defendant Pasha but Plaintiff refused to let them perform this procedure. (Id.) 21 In November of 2014, Plaintiff’s need for pain medications was reviewed by 22 Pasha. (Id. at 22.) Based on a blood draw and lab reports, it was determined that 23 Plaintiff was not taking his morphine and therefore, it was discontinued. (Id.) Plaintiff 24 disputes that finding and claims he was taking his morphine. (Id.) Plaintiff further 25 asserts that instead of taking his morphine away, there were other methods that could 26 27 2 28 3 Dr. Dean is not a named Defendant. Dr. Yoo is not a named Defendant. 5 3:17-cv-01652-LAB-PCL 1 have been used to address the concerns that Plaintiff was distributing his morphine to 2 other inmates. (Id.) Plaintiff was prescribed “Lyrica” but claims that this medication was 3 not effective for his pain. (Id. at 25.) Plaintiff claims Defendants denied “surgery at all 4 costs, because they didn’t want to give Shufelt any pain medication after the surgery.” 5 (Id. at 32.) Plaintiff was transferred to High Desert State Prison on November 3, 2016. 6 (Id. at 44.) 7 C. 8 As an initial matter, the Court finds that Plaintiff’s Complaint fails to comply with Rule 8 9 Rule 8. Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a 10 claim for relief in a pleading it must contain “a short and plain statement of the grounds 11 for the court’s jurisdiction” and “a short and plain statement of the claim showing that the 12 pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). In addition, “the pleading 13 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 14 more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 15 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 16 Plaintiff is also admonished that he must comply with Local Rule 8.2 which 17 requires, in part, that “[c]omplaints by prisoners under the Civil Rights Act, 42 U.S.C. 18 § 1983, must be legibly written or typewritten on forms supplied by the court” and 19 “[a]dditional pages not to exceed fifteen (15) in number may be included with the court 20 approved form complaint, provided the form is completely filled ion to the extent 21 applicable.” S.D. CivLr 8.2(a). Here, Plaintiff has failed to use the Court’s form 22 complaint and has filed a sixty one (61) page Complaint, which well exceeds the number 23 of pages permitted by the local rule. 24 D. 25 “Section 1983 creates a private right of action against individuals who, acting 42 U.S.C. § 1983 26 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 27 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 28 substantive rights, but merely provides a method for vindicating federal rights elsewhere 6 3:17-cv-01652-LAB-PCL 1 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 2 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 3 deprivation of a right secured by the Constitution and laws of the United States, and (2) 4 that the deprivation was committed by a person acting under color of state law.” Tsao v. 5 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 6 D. 7 There is no question that prison officials act “under color of state law” when 8 housing and providing medical care to prisoners. See West v. Atkins, 487 U.S. 42, 49-50 9 (1988) (“[G]enerally, a public employee acts under color of state law while acting in his 10 Eighth Amendment Medical Care Claims official capacity or while exercising his responsibilities pursuant to state law.”). 11 Therefore, in order to determine whether Plaintiff has pleaded a plausible claim for 12 relief based on alleged denials of medical care, the Court must review his Complaint and 13 decide whether it contains sufficient “factual content that allows [it] to draw the 14 reasonable inference” that “each Government-official defendant, through the official’s 15 own individual actions, has violated the Constitution,” and thus, may be held “liable for 16 the misconduct alleged.” Iqbal, 556 U.S. 676, 678. 17 Only “deliberate indifference to serious medical needs of prisoners constitutes the 18 unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” 19 Estelle, 429 U.S. at 103, 104 (citation and internal quotation marks omitted). “A 20 determination of ‘deliberate indifference’ involves an examination of two elements: (1) 21 the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s 22 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), 23 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 24 (en banc) (quoting Estelle, 429 U.S. at 104). 25 /// 26 /// 27 /// 28 /// 7 3:17-cv-01652-LAB-PCL 1 “Because society does not expect that prisoners will have unqualified access to 2 health care, deliberate indifference to medical needs amounts to an Eighth Amendment 3 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 4 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 5 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 6 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 7 104). “The existence of an injury that a reasonable doctor or patient would find important 8 and worthy of comment or treatment; the presence of a medical condition that 9 significantly affects an individual’s daily activities; or the existence of chronic and 10 substantial pain are examples of indications that a prisoner has a ‘serious’ need for 11 medical treatment.” Id., citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 12 1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). 13 At the screening stage of these proceedings, the Court will assume that Plaintiff’s 14 allegation of having suffered back pain enough to require surgery is sufficient to show he 15 suffered an objectively serious medical need. McGuckin, 914 F.2d at 1059. However, 16 even assuming Plaintiff’s medical needs were sufficiently serious, his Complaint fails to 17 include any further “factual content” to show that any of the named Defendants acted 18 with “deliberate indifference” to those needs. McGuckin, 914 F.2d at 1060; see also Jett 19 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678. 20 Throughout his Complaint, Plaintiff objects to the decisions made by RJD prison 21 staff as it related to his medical condition. Plaintiff admits that he was scheduled for 22 surgery, which is the crux of his complaint, but that it was cancelled because he refused 23 to allow a treatment that was determined necessary to perform before his surgery. (See 24 Compl. at 26.) Plaintiff also disagrees with the Defendants decision to change his pain 25 medication. (Id. at 25.) However, “[a] difference of opinion between a physician and the 26 prisoner–or between medical professionals–concerning what medical care is appropriate 27 does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. 28 Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 8 3:17-cv-01652-LAB-PCL 1 (9th Cir. 2012). Here, the Court finds that Plaintiff has failed to plead facts sufficient to 2 “show that the course of treatment the doctors chose was medically unacceptable under 3 the circumstances and that the defendants chose this course in conscious disregard of an 4 excessive risk to [his] health.” Snow, 681 F.3d at 988 (citation and internal quotations 5 omitted). 6 Plaintiff also seeks to hold Defendants Glynn, Roberts, Walker and Lewis liable 7 for their role in responding to his administrative grievances. However, alleging that the 8 response to his grievances was inadequate is insufficient to find an Eighth Amendment 9 violation. See Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (Finding no Eighth 10 Amendment deliberate indifference claim arising from a physician’s response to a 11 grievance where they relied on the medical opinions of staff who investigated the 12 plaintiff’s “complaints and already signed off on the treatment plan.”)). 13 Accordingly, the Court finds that Plaintiff’s Complaint fails to state an Eighth 14 Amendment inadequate medical care claim against any of the named Defendants, and 15 that therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. 16 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d 17 at 1004. Because he is proceeding pro se, however, the Court having now provided him 18 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity 19 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 20 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 21 III. Conclusion and Order 22 For the reasons explained, the Court: 23 1. 24 25 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2); 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 26 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 27 monthly payments from his account in an amount equal to twenty percent (20%) of the 28 preceding month’s income and forwarding those payments to the Clerk of the Court each 9 3:17-cv-01652-LAB-PCL 1 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 2 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 3 ASSIGNED TO THIS ACTION; 4 5 6 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; 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 7 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 8 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 9 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 10 Amended Complaint must be complete by itself without reference to his original 11 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 12 will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard 13 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 14 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 15 (noting that claims dismissed with leave to amend which are not re-alleged in an 16 amended pleading may be “considered waived if not repled.”). 17 18 19 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. 20 21 22 23 Dated: September 25, 2017 HON. LARRY ALAN BURNS United States District Judge 24 25 26 27 28 10 3:17-cv-01652-LAB-PCL

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