Gordon v. Mudd 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 prison 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 t he Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action based both o n Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2 (B) and 1915A(b), and his failure to prosecute in compliance with a court order requiring amendment. The Clerk of Court is direc ted to mail a court approved form civil rights complaint to Plaintiff. Signed by Judge Michael M. Anello on 3/16/2018. (All non-registered users served via U.S. Mail Service)(Order electronically transmitted to Secretary of CDCR, Prisoner 1983 packet mailed to plaintiff) (rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ORDER:

Plaintiff,

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Case No.: 3:18-cv-00376-MMA-AGS

JARROD GORDON,
CDCR #BB-8328,
vs.

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

DR. MUDD; TRI CITY MEDICAL
CENTER; NURSE ERIN,

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Defendants.

AND

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2) DISMISSING COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

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Jarrod Gordon (“Plaintiff”), currently incarcerated at Chuckawalla Valley State

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Prison (“CVSP”) located in Blythe, California, and proceeding pro se, has filed a civil

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rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1). Plaintiff has not paid the civil

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filing fee required by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In

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Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (Doc. No. 3).

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3:18-cv-00376-MMA-AGS

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I.

Motion to Proceed In Forma Pauperis

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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 granted leave to proceed

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IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

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

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1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 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 6-

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month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits

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in the account for the past six months, or (b) the average monthly balance in the account

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for the past six months, whichever is greater, unless the prisoner has no assets. See 28

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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner

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then collects subsequent payments, assessed at 20% of the preceding month’s income, in

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any month in which his account exceeds $10, and forwards those payments to the Court

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until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 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 copy of his CDCR Inmate

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Statement Report. See ECF No. 3 at 5-7; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;

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Andrews, 398 F.3d at 1119. This statement shows that while Plaintiff carried an average

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monthly balance of $751.45 and had average monthly deposits of $8.81 to his account over

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the 6-month period immediately preceding the filing of his Complaint, he had an available

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balance of .04 at the time of filing. See ECF No. 3 at 4. Thus, the Court assesses Plaintiff’s

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initial partial filing fee to be $150.20 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges

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he may be unable to pay that initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing

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that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing

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a civil action or criminal judgment for the reason that the prisoner has no assets and no

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means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281

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F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

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dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of

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funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 3),

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declines to exact any initial filing fee because his prison certificate indicates he may have

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“no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California

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Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead collect

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the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them

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to the Clerk of the Court pursuant to the installment payment provisions set forth in 28

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U.S.C. § 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

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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] accused

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

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

Standard of Review

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

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statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are

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frivolous, malicious, fail to state a claim, or which seek damages from defendants who are

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immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122,

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1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004

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(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 not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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

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

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

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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 the

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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 “supply

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

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University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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3:18-cv-00376-MMA-AGS

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B.

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On January 24, 2018, Plaintiff was “admitted into Tri-City Medical Center for a

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dental procedure.” (Compl. at 3.) Plaintiff alleges that he was to “have a surgical drain

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removed,” as well as “stitches removed from his gums and inner cheek.” (Id.) However,

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Plaintiff told the medical staff that he was “going to refuse all treatment and would not sign

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any consent to have any treatment or further procedure” by “Tri-City Medical Center or

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any of their employees.” (Id.)

Plaintiff’s Allegations

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The following day, Dr. Mudd “removed the surgical drain stitches and a few other

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stitches” from Plaintiff’s mouth “without [Plaintiff’s] consent.” (Id.) Plaintiff claims that

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Dr. Mudd “prescribed a narcotic and motrin for pain.” (Id.) He alleges that Dr. Mudd

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“used Nurse Erin’s cell phone light” to see inside his mouth and refused to perform the

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removal of the stitches in the operating room. (Id.) Nurse Erin “placed gauze” in his mouth

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to “stop the constant bleeding.” (Id.) Plaintiff claims he was never “given an I.V.” during

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these procedures. (Id.) In addition, he alleges Dr. Mudd “falsified my medical records

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stating that he removed all the stitches from my mouth when he did not.” (Id. at 3-4.)

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Plaintiff was released from Tri-City Medical Center on January 25, 2018 and “sent

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back to Chuckawalla Valley State Prison.” (Id. at 4.) Plaintiff “informed several nurses”

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that he was “having difficulty feeling the left side” of his tongue and he was having

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“constant pain” in the “area of [his] mouth which had the stitches.” (Id.) Plaintiff “pleaded

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with several nurses” to examine his mouth because he believed he still had stitches in his

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mouth but all refused to examine his mouth. (Id.) Plaintiff also submitted an “emergency

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grievance” requesting to be seen by a dentist “but even the dental assistant and dentist

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(Dentist Rivera) insisted” that Plaintiff did not have any remaining stitches in his mouth.

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(Id.)

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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

42 U.S.C. § 1983

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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 right

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

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committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

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

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D.

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

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Eighth Amendment claim

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

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Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks

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omitted). “A determination of ‘deliberate indifference’ involves an examination of two

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elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the

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

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1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir. 1997) (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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3:18-cv-00376-MMA-AGS

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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 a dental injury grave enough to require surgical intervention

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is sufficient to show he suffered an objectively serious medical need. See Compl. at 3;

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McGuckin, 914 F.2d at 1059.

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However, even assuming Plaintiff’s dental needs were sufficiently serious, his

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Complaint fails to include any further “factual content” to show that either Dr. Mudd or

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Nurse Erin acted with “deliberate indifference” to those needs. McGuckin, 914 F.2d at

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1060; see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at

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678.

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Specifically, Plaintiff claims only that Dr. Mudd removed some stitches from his

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mouth “without his consent” and prescribed pain medication following the procedure.

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(Compl. at 3.) Plaintiff also alleges that Nurse Erin provided him with gauze to stop the

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bleeding from the procedure. (Id.) Plaintiff does not complain of any pain before his

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release from Tri-City Medical Center. Instead, after Plaintiff returns to CVSP he

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complained of pain to medical and dental officials at CVSP. CVSP is located in

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Riverside County. If Plaintiff is attempting to state an Eighth Amendment deliberate

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indifference claim as to CVSP medical and dental officials, he would need to file a

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separate action in the Central District of California. See 28 U.S.C. § 84(c)(1) (“The

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Eastern Division [of the Central District of California] comprises the counties of

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Riverside and San Bernardino.”).

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To state an Eighth Amendment claim, Plaintiff must include “further factual

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enhancement,” Iqbal, 556 U.S. at 678, which demonstrates both Dr. Mudd and Nurse

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Erin’s “purposeful act or failure to respond to [his] pain or possible medical need,” and

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the “harm caused by [this] indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th

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Cir. 2012) (citing Jett, 439 F.3d at 1096). This is because to be deliberately indifferent,

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both Mudd and Erin’s acts or omissions must entail more than he has alleged here—an

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isolated act of alleged negligence and/or lack of due care. Snow v. McDaniel, 681 F.3d

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978, 985 (9th Cir. 2012) (citation and quotation marks omitted); Wilhelm, 680 F.3d at
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1122. See Toguchi, 391 F.3d at 1057 (“Mere negligence in diagnosing or treating a

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medical condition, without more, does not violate a prisoner’s Eighth Amendment

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rights.”). Simply put, an “inadvertent [or negligent] failure to provide adequate medical

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care” does not state a claim under § 1983. Jett, 439 F.3d at 1096 (citing Estelle, 429 U.S.

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at 105).

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Moreover, to the extent Plaintiff objects to the decisions made by Dr. Mudd as to

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how he would remove the stitches, “[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, 680 F.3d at 1122-23. Instead, Plaintiff

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must plead facts sufficient to “show that the course of treatment the doctors chose was

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medically unacceptable under the circumstances and that the defendants chose this course

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in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988

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(citation and internal quotations omitted).

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Finally, the pain and related issues Plaintiff alleges occurred following his release

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from Tri-City Medical Center and there are no allegations that Dr. Mudd or Nurse Erin

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were at all aware Plaintiff was alleging that he was suffering from complications due to

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the procedure. A plaintiff must allege fact to establish a causal link between the

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Defendants’ conduct and an alleged injury. Without causation, there is no deprivation of

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a plaintiff’s constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).

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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 either Dr. Mudd or Nurse Erin, 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 Orders

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For the reasons explained, the Court:

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1.

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(Doc. No. 3);

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2.

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

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

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month’s income and forwarding those payments to the Clerk of the Court each time the

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amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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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 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 S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 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.”).

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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) and

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1915A(b), 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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5.

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

complaint to Plaintiff.
IT IS SO ORDERED.
DATE: March 16, 2018

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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