Trammell v. Gore et al

Filing 5

ORDER DISMISSING First Amended Complaint for Failing to State a Claim. The Court grants Plaintiff forty-five (45) days leave to file an Amended Complaint which cures all the deficiencies of pleading described in this Order. The Clerk of Court is directed to mail Plaintiff a court approved form civil rights complaint for his use in amending. Signed by Judge Gonzalo P. Curiel on 10/25/18.(All non-registered users served via U.S. Mail Service including civil rights complaint)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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vs.

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ORDER DISMISSING FIRST
AMENDED COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)

Plaintiff,

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Case No.: 3:18-cv-01168-GPC-KSC

BRANDON M. TRAMMELL,
Booking No. 17163702,

SHERIFF WILLIAM D. GORE; GBDF
Faculty 8; COUNTY OF SAN DIEGO;
SAN DIEGO SHERIFFS DEP’T; DOES
1-3 MEDICAL STAFF,
Defendants.

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I.

Procedural History
On June 4, 2018, Brandon M. Trammell (“Plaintiff”), currently housed at the

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George Bailey Detention Facility (“GBDF”) located in San Diego, California, and

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proceeding pro se, filed a civil complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. See

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Doc. No. 1 at 1.

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

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time of filing; instead he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to

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28 U.S.C. § 1915(a) (Doc. No. 2).

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On June 12, 2018, the Court GRANTED Plaintiff’s Motion to Proceed IFP but sua

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sponte DISMISSED his Complaint for failing to state a claim upon which § 1983 relief

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could be granted. See Doc. No. 3 at 7-8. Plaintiff was granted leave to file an amended

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pleading in order to correct the deficiencies of pleading identified in the Court’s Order.

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See id. at 8. On July 16, 2018, Plaintiff filed his First Amended Complaint (“FAC”)

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(Doc. No. 4).

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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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As the Court previously informed Plaintiff, because Plaintiff is a prisoner and is

Standard of Review

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proceeding IFP, his pleadings requires a pre-answer screening pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

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prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state

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a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));

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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

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§ 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

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903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

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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

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 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 to “contain sufficient factual matter,

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

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556 U.S. 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

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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In January of 2018, while Plaintiff was housed at GBDF, he was “trying to get”

Plaintiff’s Allegations

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into his bed when he slipped and fell against the desk in his cell causing a “cut” to his leg.

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(FAC at 3-4.) Plaintiff informed an unnamed Sheriff Deputy who “allowed [Plaintiff] to

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shower.” (Id. at 3.) Plaintiff took a shower but claims that the cleanliness of the shower

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“does not live up to health and safety codes.” (Id.) As a result, Plaintiff claims he

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developed a “flesh eating infection” from “either the shower or from the desk.” (Id.)

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At some point, Plaintiff was examined by a GBDF nurse who “took [his] vitals”

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and found he had a high fever. (Id. at 4.) Plaintiff alleges that unnamed officials took

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him to an “observation room” where he “passed out due to the infection spreading.” (Id.)

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At some point, Plaintiff was taken to the hospital where he was given “emergency

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surgery.” (Id.) Plaintiff seeks three (3) million in compensatory and punitive damages,

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along with two (2) million for “mental anguish.” (Id. at 8.)

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C.

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Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

42 U.S.C. § 1983

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statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

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1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must
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allege two essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated, and (2) that the alleged violation was committed by a person

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acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye,

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789 F.3d 1030, 1035-36 (9th Cir. 2015).

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D.

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As an initial matter, the Court finds that to the extent Plaintiff includes the San Diego

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Sheriff’s Department as a Defendant, his claims must be dismissed sua sponte pursuant to

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both 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) for failing to state a claim upon

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which § 1983 relief can be granted. Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

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A local law enforcement department (like the San Diego County Sheriff’s Department or

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its Jail) is not a proper defendant under § 1983. See Vance v. County of Santa Clara, 928

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F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not

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an appropriate means of pleading a § 1983 action against a municipality.”) (citation

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omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section

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1983 imposes liability on any ‘person’ who violates someone’s constitutional rights ‘under

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color of law.’ Cook County Jail is not a ‘person.’”).

Improper Defendant

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E.

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To the extent Plaintiff intends to assert a claim against the County of San Diego

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itself, his allegations are insufficient. A municipal entity is liable under section 1983 only

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if plaintiff shows that his constitutional injury was caused by employees acting pursuant to

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the municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429

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U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691

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(1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). Local

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government entities may not be held vicariously liable under section 1983 for the

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unconstitutional acts of its employees under a theory of respondeat superior. See Board of

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Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997).

Municipal Liability

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Plaintiff claims it is the County’s “fault for lack of cleanliness” and insufficient

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“health inspections.” (FAC at 5.) These claims raise issues of negligence but fail to
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identify any specific policy generated by the County of San Diego that resulted in

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Plaintiff’s alleged injuries.

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F.

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In addition, Plaintiff names Sheriff William Gore as a Defendant in his individual

Respondeat Superior

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capacity but provides no factual allegations as to this Defendant. As a result, Plaintiff

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fails to state a claim upon which § 1983 relief can be granted because he sets forth no

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individualized allegations of wrongdoing by Sheriff Gore, and instead seeks to hold him

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vicariously liable for the actions of his deputies and medical staff. See Iqbal, 556 U.S. at

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676 (“Because vicarious liability is inapplicable to . . . § 1983 suits,” Plaintiff “must

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plead that each Government-official defendant, though the official’s own individual

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actions, has violated the Constitution.”)

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Plaintiff’s FAC contains no factual allegations describing what Defendant Sheriff

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Gore knew, did, or failed to do, with regard to Plaintiff’s needs. Estate of Brooks v.

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United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required

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element of a § 1983 claim.”) “The inquiry into causation must be individualized and

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focus on the duties and responsibilities of each individual defendant whose acts or

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omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844

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F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Berg

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v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986).

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Thus, without some specific “factual content” that might allow the Court to “draw

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the reasonable inference” that Sheriff Gore may be held personally liable for any

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unconstitutional conduct directed at Plaintiff, the Court finds his FAC, as currently

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pleaded, contains allegations which Iqbal makes clear fail to “state a claim to relief that is

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plausible on its face.” Iqbal, 556 U.S. at 568.

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G.

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Prison officials are liable only if they are deliberately indifferent to the prisoner’s

Inadequate Medical Care

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serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); see also Clouthier

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v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 2010) (applying Estelle’s
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Eighth Amendment deliberate indifference standard to inadequate medical care claims

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alleged to violate a pretrial detainees’ due process rights), overruled on other grounds by

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Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016).

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Here, Plaintiff does claim to have suffered injuries that demonstrates that his

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medical needs may be objectively serious. See McGuckin v. Smith, 974 F.2d 1050, 1059

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(9th Cir. 1991) (defining a “serious medical need” as one which the “failure to treat ...

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could result in further significant injury or the ‘unnecessary and wanton infliction of

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

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Cir. 1997) (en banc) (citing Estelle, 429 U.S. at 104); Iqbal, 556 U.S. at 678 (“[A]

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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at 570). The “existence

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of an injury that a reasonable doctor or patient would find important and worthy of

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comment or treatment; the presence of a medical condition that significantly affects an

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individual’s daily activities; or the existence of chronic and substantial pain are examples

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of indications that a prisoner has a ‘serious’ need for medical treatment.” McGuckin, 974

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F.3d at 1059-60.

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Even if the Court assumes Plaintiff’s medical needs were “objectively serious”

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medical conditions, nothing in his FAC supports a “reasonable inference that [any

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individual] defendant” acted with deliberate indifference to his plight. Iqbal, 556 U.S. at

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678. “In order to show deliberate indifference, an inmate must allege sufficient facts to

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indicate that prison officials acted with a culpable state of mind.” Wilson v. Seiter, 501

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U.S. 294, 302 (1991). The indifference to medical needs also must be substantial;

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inadequate treatment due to malpractice, or even gross negligence, does not amount to a

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constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir. 2004) (“Deliberate indifference is a high legal standard.”) (citing Hallett v.

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Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1334

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(9th Cir. 1990)). A difference of opinion between a pretrial detainee and the doctors or

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other trained medical personnel at the Jail as to the appropriate course or type of medical
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attention he requires does not amount to deliberate indifference, see Snow v. McDaniel,

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681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.

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1989)), and any delay in providing an appropriate course of treatment does not by itself

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show deliberate indifference, unless the delay is alleged have caused harm. See

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McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d

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404, 407 (9th Cir. 1985).

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Here, Plaintiff alleges he was examined by GBDF staff and found to have a fever.

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See FAC at 4. He was placed in an “observation room” and a “culture” was taken from

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his wound. (Id.) Ultimately, he was transferred to an outside hospital. (Id.) However,

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Plaintiff alleges no facts that any medical personnel at GBDF acted in “deliberate

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indifference” to his serious medical needs. Instead, he alleges that he disagrees with

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how they treated him for his medical condition which is insufficient to state a claim. See

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Snow, 681 F.3d at 987. Without more, Plaintiff’s inadequate medical care claims

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currently amount only to “unadorned, the defendant[s]-unlawfully-harmed-me

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accusation[s],” which “stop[] short of the line between possibility and plausibility of

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‘entitlement to relief’” as to any constitutionally inadequate medical care claim. Iqbal,

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556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

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H.

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A pro se litigant must be given leave to amend his pleading to state a claim unless

Leave to Amend

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it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d

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at 1130 (noting leave to amend should be granted when a complaint is dismissed under

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28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”).

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Therefore, while the Court finds Plaintiff’s FAC fails to state a claim upon which relief

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can be granted, it will provide him a chance to fix the pleading deficiencies discussed in

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this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing

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

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III.

Conclusion and Order

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For all the reasons discussed, the Court:

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1.

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DISMISSES Plaintiff’s FAC for failing to state a claim upon which § 1983

relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A;
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GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint

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which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned,

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however, that should he choose to file an Amended Complaint, it must be complete by

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itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-

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

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

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

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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3.

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

rights complaint for his use in amending.
IT IS SO ORDERED.
Dated: October 25, 2018

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