Cook v. LaRoche et al

Filing 5

ORDER (1) granting 2 Motion for Leave to Proceed in forma pauperis; (2) Denying 4 Motion for Appointment of counsel; and (3) Dismissing claims for failing to state a claim pursuant to 28 USC 1915(e)(2) and 1915A(b). Plaintiff forty-five (45) d ays leave to either: (1) file a First Amended Complaint which cures all the deficiencies of pleading described in this Order; or (2) notify the Court of the intention to proceed as to the excessive force claims only.Signed by Judge John A. Houston on 10/23/2017. (cc: Watch Commander, George F. Bailey Detention Facility). (All non-registered users served via U.S. Mail Service)(jpp)(jrd)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DANIEL MOSES COOK, Inmate Booking #17145418, vs. 14 16 ORDER: Plaintiff, 13 15 Case No.: 3:17-cv-01826-JAH-JMA (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]; JONATHAN LAROCHE; JOSEPH GOMES; SAN DIEGO COUNTY SHERIFF'S DEP'T; JACK IN THE BOX, (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 3); and Defendants. 17 18 19 (3) DISMISSING CLAIMS FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 20 21 22 Daniel Moses Clark (“Plaintiff”), currently incarcerated at the George Bailey 23 24 Detention Facility (“GBDF”) located in San Diego, California, and proceeding pro se, 25 has filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis (“IFP”) 26 27 pursuant to 28 U.S.C. § 1915(a), along with a Motion to Appoint Counsel. (ECF Nos. 2, 28 4.) 1 3:17-cv-01826-JAH-JMA 1 I. Motion to Appoint Counsel 2 Plaintiff seeks appointment of counsel to assist him in this matter. (ECF No. 4.) 3 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. of 4 Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district 5 courts have some limited discretion to “request” that an attorney represent an indigent 6 civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), 7 this discretion is rarely exercised and only under “exceptional circumstances.” Id.; see 8 also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 9 circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the 10 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 11 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103, quoting Wilborn 12 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 13 Applying these factors to Plaintiff’s case, the Court DENIES his Motion to 14 Appoint Counsel because a liberal construction of his original pleadings shows he is 15 capable of articulating the factual basis for his claims. All documents filed by pro se 16 litigants are construed liberally, and “a pro se complaint, however inartfully pleaded, 17 must be held to less stringent standards than formal pleadings drafted by lawyers.” 18 Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that 19 “[p]leadings . . . be construed so as to do justice.” 20 The pleadings filed by Plaintiff to date demonstrate that while Plaintiff may not be 21 a trained in law, he is capable of legibly articulating the facts and circumstances relevant 22 to his claims, which are typical, straightforward, and not legally “complex.” Agyeman, 23 390 F.3d at 1103. Therefore, neither the interests of justice nor any exceptional 24 circumstances warrant the appointment of counsel in this case at this time. LaMere v. 25 Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 26 II. 27 28 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of 2 3:17-cv-01826-JAH-JMA 1 $400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, 4 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 5 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 6 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of 7 whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 8 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of (a) the average 14 monthly deposits in the account for the past six months, or (b) the average monthly 15 balance in the account for the past six months, whichever is greater, unless the prisoner 16 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 17 custody of the prisoner then collects subsequent payments, assessed at 20% of the 18 preceding month’s income, in any month in which his account exceeds $10, and forwards 19 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 20 Bruce, 136 S. Ct. at 629. 21 In support of his IFP Motion, Plaintiff has submitted a prison certificate completed 22 by a GBDF accounting official attesting to his trust account activity and balances for the 23 six-months preceding the filing of his Complaint. See ECF No. 2 at 2; 28 U.S.C. 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. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 3 3:17-cv-01826-JAH-JMA 1 § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show 2 that Plaintiff had an average monthly balance of $3.34, and average monthly deposits of 3 $150.00 to his account over the 6-month period immediately preceding the filing of his 4 Complaint, as well as an available balance of $6.67 at the time of filing. See ECF No. 2 at 5 2. Based on this financial information, the Court GRANTS Plaintiff’s Motion to Proceed 6 IFP (ECF No. 2), and assesses his initial partial filing fee to be $30.00 pursuant to 28 7 U.S.C. § 1915(b)(1). 8 However, the Court will direct the Watch Commander for GBDF, or his designee, 9 to collect this initial fee only if sufficient funds are available in Plaintiff’s account at the 10 time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 11 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 12 criminal judgment for the reason that the prisoner has no assets and no means by which to 13 pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 14 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 15 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 16 to him when payment is ordered.”). The remaining balance of the $350 total fee owed in 17 this case must be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. 18 § 1915(b)(1). 19 III. 20 Initial Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) The Court is obligated by the Prison Litigation Reform Act (“PLRA”) to review 21 complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are 22 “incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated 23 delinquent for, violations of criminal law or the terms or conditions of parole, probation, 24 pretrial release, or diversionary program,” at the time of filing “as soon as practicable 25 after docketing.” See Doc. No. 8 at 4; 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the 26 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are 27 frivolous, malicious, fail to state a claim, or which seek damages from defendants who 28 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 4 3:17-cv-01826-JAH-JMA 1 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 2 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 3 A. 4 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious Standard of Review 5 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 6 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 7 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a 8 claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 9 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. 10 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113, 11 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the 12 familiar standard applied in the context of failure to state a claim under Federal Rule of 13 Civil Procedure 12(b)(6)”). 14 Every complaint must contain “a short and plain statement of the claim showing 15 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations 16 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 17 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded 19 factual allegations, a court should assume their veracity, and then determine whether they 20 plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a 21 complaint states a plausible claim for relief [is] . . . a context-specific task that requires 22 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 23 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 24 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 25 /// 26 /// 27 /// 28 /// 5 3:17-cv-01826-JAH-JMA 1 While a plaintiff’s factual allegations are taken as true, courts “are not required to 2 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 3 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 4 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 5 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 6 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 7 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 8 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 9 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in 10 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id. 11 B. 12 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 42 U.S.C. § 1983 13 privileges, or immunities secured by the Constitution and laws” of the United States. 14 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 15 allege two essential elements: (1) that a right secured by the Constitution or laws of the 16 United States was violated, and (2) that the alleged violation was committed by a person 17 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of 18 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 19 Here, the Court finds that Defendant Jack in the Box, a purported corporation, is 20 not alleged to be “person[s] acting under color of state law.” See West; 487 U.S. at 48; 21 Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (The party 22 charged with a constitutional deprivation under § 1983 must be a person who may fairly 23 be said to be a governmental actor) (citation and quotations omitted). 24 The Constitution protects individual rights only from government action and not 25 from private action; it is only when the government is responsible for the specific conduct 26 of which the plaintiff complains that individual constitutional rights are implicated. 27 Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746-47 (9th Cir. 2003). Generally, 28 private parties do not act under color of state law. See Price v. Hawai’i, 939 F.2d 702, 6 3:17-cv-01826-JAH-JMA 1 707-08 (9th Cir. 1991). Section “1983 excludes from its reach merely private conduct, no 2 matter how discriminatory or wrong.” Sutton, 193 F.3d at 835 (citing Am. Mfrs. Mut. Ins. 3 Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted)); 4 see also Ouzts v. Md. Nat’l Ins. Co., 505 F.2d 547, 551 (9th Cir.1974) (a purely private 5 actor may be liable for his misconduct in state court, but his conduct is not actionable 6 under Section 1983, regardless of how egregious). 7 In order for private conduct to constitute governmental action, “something more” 8 must be alleged. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982) (“Action 9 by a private party pursuant to [§ 1983], without something more, [i]s not sufficient to 10 justify a characterization of that party as a ‘state actor.’”). Courts have used four different 11 factors or tests to identify what constitutes “something more”: (1) public function, (2) 12 joint action, (3) governmental compulsion or coercion, and (4) governmental nexus. See 13 id.; Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997); Parks Sch. of Bus., Inc. v. 14 Symington, 51 F.3d 1480, 1486 (9th Cir. 1995); Gorenc v. Salt River Project Agric. 15 Improvement and Power Dist., 869 F.2d 503, 506 (9th Cir. 1989). 16 Here, Plaintiff has failed to allege facts sufficient to plausibly show that the 17 corporation he has named as Defendant performed any public function traditionally 18 reserved to the state, acted as a willful participant in joint action with government agents, 19 was compelled or coerced, or had any connection whatsoever with the state, when it 20 allegedly injured Plaintiff. See Iqbal, 556 U.S. at 678; Lugar, 457 U.S. at 939. 21 C. 22 In addition, to the extent Plaintiff seeks damages against Defendants and claims Heck Bar 23 they falsely arrested him, he may not pursue those claims in a civil rights action pursuant 24 to 42 U.S.C. § 1983, without first showing his conviction has already been invalidated. 25 See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 26 /// 27 /// 28 /// 7 3:17-cv-01826-JAH-JMA 1 2 3 4 5 6 7 8 9 10 11 In Heck, the Supreme Court held: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 486-87. “Suits challenging the validity of the prisoner’s continued incarceration lie within 12 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state 13 prisoner who is making a constitutional challenge to the conditions of his prison life, but 14 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 15 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of 16 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 17 “exclusive” means to “attack the validity of his confinement” in federal court). 18 Because Plaintiff seeks damages based on an arrest he alleges was “false” and 19 based on perjured testimony (ECF No. 1 at 3-4), his claims amount to an attack on the 20 validity of his underlying criminal conviction, and may not proceed pursuant to § 1983, 21 unless his conviction has already been invalidated. Heck, 512 U.S. at 486-87; Ramirez, 22 334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven a prisoner who has fully exhausted 23 available state remedies has no cause of action under § 1983.’”), quoting Heck, 512 U.S. 24 at 489. While Plaintiff identifies no specific acts of misconduct taken by the Defendants 25 prior to or during the course of his criminal proceedings, except to point to the “false 26 narratives, contentious charges and overzealous attacks” (ECF No. 1 at 4), see Iqbal, 556 27 U.S. at 677 (noting that “[a]bsent vicarious liability, each Government official, his or her 28 title notwithstanding, is only liable for his or her own misconduct”), the Court will 8 3:17-cv-01826-JAH-JMA 1 presume he intends to sue these law enforcement officials for acting together to 2 wrongfully convict him in violation of “due process.” (ECF No. 1 at 4). 3 However, such claims “necessarily imply the invalidity” of his conviction and 4 continued incarceration. Heck, 512 U.S. at 487. In other words, were Plaintiff to succeed 5 in showing that Defendants conspired to wrongfully convict him based on false evidence 6 or perjured testimony, an award of damages would “necessarily imply the invalidity” of 7 his conviction and/or sentence. Id., 512 U.S. at 487; see also Guerrero v. Gates, 442 F.3d 8 697, 701 (9th Cir. 2006) (finding § 1983 action stemming from allegations of wrongful 9 arrest, malicious prosecution, and a general conspiracy of “bad behavior” among officials 10 in connection with the plaintiff’s arrest, prosecution, and incarceration were barred by 11 Heck). 12 D. 13 The Court also finds Plaintiff’s Complaint requires sua sponte dismissal pursuant Defendant San Diego Sheriff’s Department 14 to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) to the extent it seeks relief under 15 § 1983 against the San Diego Sheriff’s Department. The San Diego Sheriff’s 16 Department, unlike the County of San Diego itself, is not subject to suit under § 1983. 17 See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a 18 municipal department as a defendant is not an appropriate means of pleading a § 1983 19 action against a municipality.”); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. 20 Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone’s 21 constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’)). 22 Therefore, while the County of San Diego may be considered a “person” subject to suit 23 under § 1983, see Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) 24 (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978)), its Sheriff’s Department 25 may not. 26 E. 27 Plaintiff alleges that he was treated by an unnamed medical doctor while housed by 28 Medical care claims the San Diego Sheriff’s Department for “blood and discharge” coming from his ear due 9 3:17-cv-01826-JAH-JMA 1 to the alleged excessive force incident. (Compl. at 6.) Plaintiff claims the Doctor 2 provided him with “ear drops and antibiotics” but only referred to his condition as a 3 “mild ear infection.” (Id.) 4 Prison officials are liable only if they are deliberately indifferent to the prisoner’s 5 serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); see also Clouthier 6 v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 2010) (applying Estelle’s 7 Eighth Amendment deliberate indifference standard to inadequate medical care claims 8 alleged to violate a pretrial detainees’ due process rights). 9 Here, Plaintiff claims suffered from “blood and discharge” from his ear for up to 10 twelve days, but he fails to include any further “factual matter” sufficient to show or 11 describe how or to what extent his medical needs were objectively serious. See 12 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) (defining a “serious medical 13 need” as one which the “failure to treat ... could result in further significant injury or the 14 ‘unnecessary and wanton infliction of pain.’”), overruled on other grounds by WMX 15 Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (citing Estelle, 429 U.S. at 16 104); Iqbal, 556 U.S. at 678 (“[A] complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim to relief that is plausible on its face.’”) (quoting 18 Twombly, 550 U.S. at 570). The “existence of an injury that a reasonable doctor or patient 19 would find important and worthy of comment or treatment; the presence of a medical 20 condition that significantly affects an individual’s daily activities; or the existence of 21 chronic and substantial pain are examples of indications that a prisoner has a ‘serious’ 22 need for medical treatment.” McGuckin, 974 F.3d at 1059-60. 23 Moreover, even if the Court assumes Plaintiff’s ear condition was an “objectively 24 serious” medical condition, nothing in his Complaint supports a “reasonable inference 25 that [any individual] defendant” acted with deliberate indifference to his plight. Iqbal, 26 556 U.S. at 678. “In order to show deliberate indifference, an inmate must allege 27 sufficient facts to indicate that prison officials acted with a culpable state of mind.” 28 Wilson v. Seiter, 501 U.S. 294, 302 (1991). The indifference to medical needs also must 10 3:17-cv-01826-JAH-JMA 1 be substantial; inadequate treatment due to malpractice, or even gross negligence, does 2 not amount to a constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 3 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal standard.”) 4 (citing Hallett v. Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900 5 F.2d 1332, 1334 (9th Cir. 1990)). A difference of opinion between a pretrial detainee and 6 the doctors or other trained medical personnel at the Jail as to the appropriate course or 7 type of medical attention he requires does not amount to deliberate indifference, see Snow 8 v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 9 242 (9th Cir. 1989)), and any delay in providing an appropriate course of treatment does 10 not by itself show deliberate indifference, unless the delay is alleged have caused harm. 11 See McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 12 F.2d 404, 407 (9th Cir. 1985); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) 13 (“[D]elay in providing a prisoner with dental treatment, standing alone, does not 14 constitute an Eighth Amendment violation.”). 15 Plaintiff’s Complaint, as currently pleaded, does not include facts to show that any 16 individual San Diego Sheriff’s Department official actually knew of, yet disregarded any 17 serious medical need. See Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1193 (9th Cir. 18 2002) (“[D]eliberate indifference requires the defendant to be subjectively aware that 19 serious harm is likely to result from a failure to provide medical care.”). Nor does it 20 allege that any decision to refuse or delay a particular course of medical treatment caused 21 him actual harm. See McGuckin, 974 F.2d at 1060. Without more, Plaintiff’s Complaint 22 currently amounts only to “unadorned, the defendant[s]-unlawfully-harmed-me 23 accusation[s],” which “stop[] short of the line between possibility and plausibility of 24 ‘entitlement to relief’” as to any constitutionally inadequate medical care claim. Iqbal, 25 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). 26 F. 27 The Court does find that Plaintiff’s excessive force allegations are sufficient to 28 Excessive force claims survive the “low threshold” for proceeding past the sua sponte screening required by 28 11 3:17-cv-01826-JAH-JMA 1 U.S.C. §§ 1915(e)(2) and 1915A(b), because it alleges excessive force claims as to 2 Defendants LaRoche and Gomes which are plausible on its face.2 See Wilhelm, 680 F.3d 3 at 1123. See Iqbal, 556 U.S. at 678; Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct. 4 2466, 2473 (2015) (“[T]he Due Process Clause protects a pretrial detainee from the use 5 of excessive force that amounts to punishment.”) (citing Graham v. Connor, 490 U.S. 6 386, 395 n.10 (1989)). Under Kingsley, a pretrial detainee, unlike a convicted prisoner, 7 need not prove that the defendant subjectively knew that the force applied was excessive; 8 that state-of-mind inquiry is “solely ... objective.” Id. at 2473; Austin v. Baker, 616 F. 9 App’x 365, 366 (9th Cir. 2015); cf. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (when 10 prison officials stand accused of using excessive force in violation of the Eighth 11 Amendment, the core judicial inquiry is “... whether force was applied in a good-faith 12 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”). 13 G. 14 A pro se litigant must be given leave to amend his pleading to state a claim unless Leave to Amend 15 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d 16 at 1130 (noting leave to amend should be granted when a complaint is dismissed under 17 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”). 18 Therefore, the Court will grant him a chance to fix the pleading deficiencies discussed in 19 this Order or he may notify the Court of the intent to proceed as to the excessive force 20 claims only. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 21 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 22 23 If Plaintiff notifies the Court of his intention to proceed as to the excessive force claims only, the Court will enter an order dismissing all the remaining claims and 24 25 2 26 27 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [any individual defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 12 3:17-cv-01826-JAH-JMA 1 Defendants, as well as directing the United States Marshals Service to effect service of 2 the Complaint on Defendants LaRoche and Gomes. 3 IV. Conclusion and Order 4 For all the reasons discussed, the Court: 5 1. 6 7 8 9 DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 4) without prejudice. 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 3. DIRECTS the Secretary of the CDCR, or his designee, to collect from 10 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 11 payments from his account in an amount equal to twenty percent (20%) of the preceding 12 month’s income and forwarding those payments to the Clerk of the Court each time the 13 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 14 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 15 ASSIGNED TO THIS ACTION. 16 4. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 17 Commander, George F. Bailey Detention Facility, 446 Alta Road, #5300, San Diego, 18 California 92158. 19 5. DISMISSES Plaintiff’s claims, with the exception of Plaintiff’s excessive 20 force claims, for failing to state a claim upon which § 1983 relief can granted pursuant to 21 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 22 6. GRANTS Plaintiff forty-five (45) days leave to either: (1) file a First 23 Amended Complaint which cures all the deficiencies of pleading described in this Order; 24 or (2) notify the Court of the intention to proceed as to the excessive force claims only. 25 Plaintiff is cautioned, however, that should he choose to file a First Amended Complaint, 26 it must be complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that 27 any claim not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal 28 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 13 3:17-cv-01826-JAH-JMA 1 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 2 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 3 re-alleged in an amended pleading may be “considered waived if not repled.”). 4 If Plaintiff fails to follow these instructions and/or files a First Amended 5 Complaint that still fails to state a claim, his case may be dismissed without further leave 6 to amend. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 7 not take advantage of the opportunity to fix his complaint, a district court may convert the 8 dismissal of the complaint into dismissal of the entire action.”). 9 IT IS SO ORDERED. 10 11 12 13 14 Dated: October 23, 2017 HON. JOHN A. HOUSTON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 3:17-cv-01826-JAH-JMA

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