Hagan v. Barenchi et al

Filing 4

ORDER: 1) Granting 2 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 of the CDCR, or his designee, is to collect from Plaintif f's trust account the $7.33 initial filing fee assessed, if those funds are available at the time this Order is executed, and to forward whatever balance remains of the full $350 owed in monthly payments in an amount equal to twenty pe rcent (20%) of the preceding month's income to the Clerk of the Court each time the amount in Plaintiff's account exceeds $10 pursuant to 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Janis L. Sammartino on 3/29/2018. (Copy of ORDER FWD to CDCR)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEVIN HAGAN,
CDCR #AM-6145,

Case No.: 3:18-cv-00243-JLS-JLB

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vs.

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ORDER:
1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS,
(ECF NO. 2); AND
2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

Plaintiff,

RYAN BARENCHI,
Doctor CMO, et al.,

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Defendants.

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Plaintiff Kevin Hagan, incarcerated at Richard J. Donovan Correctional Facility

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(“RJD’”) in San Diego, California, and proceeding pro se, has filed a civil rights Complaint

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pursuant to 42 U.S.C. § 1983. (See “Compl.,” ECF No. 1.)

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Plaintiff claims RJD’s Chief Medical Officer Ryan Barenchi, and three other RJD

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doctors (Santos, Clayton, and Mezzles), have “failed to address” his “severe pain” in

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violation of the Eighth Amendment in December 2014, and on other unspecified occasions

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in 2015, 2016, and 2017. (Id. at 1–3.) He seeks injunctive relief preventing retaliation and

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requiring “adequate pain medication,” as well as $150,000 in general and punitive

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damages. (Id. at 7.)

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

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filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a), (ECF No. 2).
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I.

Plaintiff’s IFP Motion

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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); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

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(9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. 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 balance

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in the account for the past six months, whichever is greater, unless the prisoner has no

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assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

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of the prisoner then collects subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which his account exceeds $10, and forwards those

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payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,

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136 S. Ct. at 629.

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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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In support of his IFP Motion, Plaintiff has submitted a certified copy of his California

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Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report,

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together with a certificate of funds certified by a prison official at RJD, as required 28

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U.S.C. § 1915(a)(2) and Civ. L. R. 3.2. (See ECF No. 3, at 1–4); Andrews, 398 F.3d at

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1119. These documents shows Plaintiff had average monthly deposits of $25.24, an

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average monthly balance of $36.68 over the 6-month period preceding the filing of his

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Complaint, and an available balance of $10.14 at the time of filing. (See ECF No. 3 at 1.)

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Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP, (ECF

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No. 2), and assess an initial partial filing of $7.33 pursuant to 28 U.S.C. § 1915(b)(1).

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However, the Court will direct the Secretary of the CDCR, or his designee, to collect

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this initial fee only if sufficient funds are available in Plaintiff’s account at the time this

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Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a

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prisoner be prohibited from bringing a civil action or appealing a civil action or criminal

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judgment for the reason that the prisoner has no assets and no means by which to pay the

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initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that

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28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP

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case based solely on a “failure to pay . . . due to the lack of funds available to him when

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payment is ordered”). The remaining balance of the $350 total fee owed in this case must

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be collected and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(1).

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II.

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

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

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

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

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is 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)); Byrd v. Phoenix Police Dept., No. 16-16152, 2018 WL 1352916,

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at *2 (9th Cir. 2018) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is

Standard of Review

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‘to ensure that the targets of frivolous or malicious suits need not bear the expense of

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responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler

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v. Wexford 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 “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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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 Service, 572 F.3d 962, 969 (9th Cir. 2009).

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Moreover, while the court is obliged to “construe the pleadings liberally and to

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afford the [plaintiff] the benefit of the doubt,” Byrd, 2018 WL 1352916, at *2 (citing Bretz

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v. Kelman, 773 F.3d 1026, 1027 n.1 (9th Cir. 1985) (en banc)), it may not “supply essential

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elements of claims that were not initially pled.” Ivey v. Board of Regents of the University

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of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff’s Allegations

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B.

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Plaintiff’s claims are conclusory, and his factual allegations are practically

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nonexistent. However, he alleges he is in “severe pain 24/7” and was “seen by” RJD

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Doctors Santos, Clayton, and Mezzles on an unspecified day in December 2014, and on
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other unspecified occasions over a three-year period spanning from 2015 through 2017.

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(See Compl. 1–3.)

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“adequate pain medication,” and “failed to address [his] issues.” (Id. at 3.) Plaintiff further

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admits he was referred to a neurologist who “says [he] need[s] a fusion L-3-L-2 and all

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surgical hardware removed,” but “CDCR denied,” and Dr. Barenchi, RJD’s Chief Medical

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Officer, “allowed this to go on.” (Id. at 2, 3.)

Plaintiff claims each doctor “saw” him, “refused” to prescribe

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C.

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

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

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

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rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

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Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

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

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

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was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,

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

42 U.S.C. § 1983

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D.

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There is no question that Defendants, all alleged to be physicians or medical

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personnel employed by the State of California to “provide medical services to state prison

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inmates, acted under color of state law for purposes of § 1983.” West v. Atkins, 487 U.S.

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42, 54 (1988).

Eighth Amendment Medical Care

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However, only “deliberate indifference to a prisoner’s serious illness or injury [will]

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state[] a cause of action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 105 (1976); see

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also Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 2010) (applying

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Estelle’s Eighth Amendment deliberate indifference standard to inadequate medical care

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claims alleged to violate a pretrial detainees’ due process rights).

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First, Plaintiff must allege a “serious medical need” by demonstrating that “failure

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to treat [his] condition could result in further significant injury or the ‘unnecessary and
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wanton infliction of pain.’” 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) (citing Estelle, 429 U.S. at 104). 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.” Id. at 1059-60.

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Plaintiff claims he is in “severe pain 24/7,” and while he does not identify his

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medical condition or the source of his pain, the Court infers from his referral to a

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neurologist and claimed need for a “fusion” at “L-3-L-2,” (see Compl. 3), that Plaintiff

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suffers from back pain, for which he has already undergone, or claims to require, surgical

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intervention. (Id.) Thus, the Court will assume, for purposes of screening pursuant to 28

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U.S.C. § 1915(e)(2) and § 1915A, that Plaintiff’s medical need is sufficiently and

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objectively serious. See Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (citing

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Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)), Asberry v. Beard, No. 13CV2573

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WQH JLB, 2014 WL 3943459, at *4 (S.D. Cal. Aug. 12, 2014) (finding allegations of

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chronic lower back pain severe enough to compromise prisoner’s ability to “walk any

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distance” without “collaps[ing]” sufficient to allege an objectively serious medical need)

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(citing McGuckin, 914 F.2d at 1059); Garcia v. Pido, No. 1:11-CV-0972-LJO-JLT, 2013

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WL 3815884, at *4 (E.D. Cal. July 22, 2013) (noting that allegations of chronic and severe

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pain have been recognized as serious medical conditions necessitating medical treatment);

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Garner v. Hazzard, No. 06-CV-0985, 2008 WL 552872, at *6 (N.D.N.Y. Feb. 27, 2008)

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(holding that severe back pain, especially if long-lasting, can amount to a serious medical

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need).

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However, even assuming Plaintiff’s back pain was sufficiently objectively serious

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to invoke Eighth Amendment protection, he must also include in his pleading enough

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factual content to show that each Defendant he seeks to hold liable acted with “deliberate

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indifference” to his needs. McGuckin, 974 F.2d at 1060; see also Jett, 439 F.3d at 1096.
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“This second prong–defendant’s response to the need was deliberately indifferent–is

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satisfied by showing (a) a purposeful act or failure to respond to [the] prisoner’s pain or

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possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096.

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“Deliberate indifference is a high legal standard,” and claims of medical malpractice or

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negligence are insufficient to establish a constitutional deprivation. Simmons v. Navajo

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County, 609 F.3d 1011, 1019 (9th Cir. 2010) (citing Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004)).

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In his Complaint, Plaintiff claims only that Defendants collectively “refused” to give

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him “adequate pain medication,” and therefore, violated the Eighth Amendment by failing

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to properly “address” his issues. (See Compl. 2–3.) “Deliberate indifference” is a legal

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conclusion, however; and to the extent Plaintiff’s pleading “offers ‘labels and conclusions’

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or a ‘formulaic recitation of the elements of a cause of action,’” but no “further factual

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enhancement,” it “will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555,

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557).

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Instead, “[d]eliberate indifference” is evidenced only when a prisoner alleges the

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official he seeks to hold liable “kn[ew] of and disregard[ed] an excessive risk to inmate

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health and safety; the official must be both aware of facts from which the inference could

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be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n]

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the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Specifically, Plaintiff must

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allege “factual content,” Iqbal, 556 U.S. at 678, which demonstrates “(a) a purposeful act

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or failure to respond to [his] pain or possible medical need, and (b) harm caused by the

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indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state

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of mind is one of subjective recklessness, which entails more than ordinary lack of due

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care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks

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omitted); Wilhelm, 680 F.3d at 1122.

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Here, while Plaintiff obviously disagrees with Defendants’ assessment of his

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medical need for specific medication or pain management, this disagreement, without

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more, does not provide sufficient “factual content” to plausibly suggest that either CMO
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Barenchi, or any of Plaintiff’s treating physicians acted with “deliberate indifference.”

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Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,’

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but it ask for more than the sheer possibility that a defendant 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, 681 F.3d at 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240,

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242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23. Rather, Plaintiff “must show that the

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course of treatment the doctors chose was medically unacceptable under the circumstances

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and that the defendants chose this course in conscious disregard of an excessive risk to

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[his] health.” Snow, 681 F.3d at 988 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th

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Cir. 1996)) (internal quotation marks omitted). Indeed, in Estelle the Supreme Court

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rejected a prisoner’s Eighth Amendment claim that prison doctors should have done more

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by way of diagnosis and treatment after he injured his back, and emphasized that “the

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question whether an X-ray or additional diagnostic techniques or forms of treatment is

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indicated is a classic example of a matter for medical judgment” and “does not represent

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cruel and unusual punishment.” 429 U.S. at 107.

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The same is true here as to Plaintiff’s alleged denial of “adequate pain medication.”

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(See Compl. 2); Toguchi, 391 F.3d at 1058 (rejecting prisoner’s Eighth Amendment claim

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that “Seroquel is superior to Triafon” as a mere “difference of medical opinion” insufficient

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to show deliberate indifference). “While plaintiff is certainly free to refuse specific

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medications or types of medication, he does not have a right to dictate what medications

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he will be prescribed.” Peacock v. Horowitz, No. 2:13-CV-2506-TLN-ACP, 2016 WL

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3940346, at *7 (E.D. Cal. July 21, 2016) (citing Stiltner v. Rhay, 371 F.2d 420, 421 n.3

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(9th Cir. 1967)).

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

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Amendment claim upon which § 1983 relief can be granted. See 28 U.S.C. §§ 1915(e)(2),

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1915A(b); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121. Because he is

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proceeding without counsel, however, the Court having now provided him with “notice of
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the deficiencies in his complaint,” will also grant Plaintiff an opportunity to amend it. See

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Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d

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1258, 1261 (9th Cir. 1992)).

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III.

Conclusion and Order

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Good cause appearing, 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).
2.

ORDERS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s trust account the $7.33 initial filing fee assessed, if those funds are available at

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the time this Order is executed, and to forward whatever balance remains of the full $350

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owed in monthly payments in an amount equal to twenty percent (20%) of the preceding

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month’s income to the Clerk of the Court each time the amount in Plaintiff’s account

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exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

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ACTION.

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3.

ALL PAYMENTS MUST BE

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

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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), 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 noted.

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Complaint must be complete by itself without reference to his original pleading.

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Defendants not named and any claim not re-alleged in his Amended Complaint will be

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considered waived. See Civ. L. R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co.,

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

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

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dismissed with leave to amend which are not re-alleged in an amended pleading may be

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“considered waived if not repled.”).

Plaintiff’s Amended

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state

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a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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1915A(b)(1), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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IT IS SO ORDERED.
Dated: March 29, 2018

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