Sandoval v. Guldseth et al

Filing 5

ORDER: (1) Granting #2 Motion for Leave to Proceed in forma pauperis. 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 the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR); (2) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e)(2) and 1915A(b). Signed by Judge Cynthia Bashant on 10/7/2019. (All non-registered users served via U.S. Mail Service)(mme) (jao).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERTO SANDOVAL,
CDCR #AM-0186,

Case No.: 19-cv-01584-BAS-RBB
ORDER:

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Plaintiff,

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v.

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(1) GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS [ECF No. 3];

DAVID GULDSETH, M.D.; ROMAN B.
CHAM, M.D.,

AND

Defendants.

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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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On August 23, 2019, Alberto Sandoval (“Plaintiff”), currently incarcerated at the

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Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and

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proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No.

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1 (“Compl.”.) Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a);

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instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a). (ECF No. 2 (“IFP Motion”).)

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I.

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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 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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Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his

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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281

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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 the average

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monthly deposits in the account for the past six months, or the average monthly balance in

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

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

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

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

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

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In support of his IFP Motion, Plaintiff has submitted a copy of his Prison Certificate

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and Inmate Statement Report from the California Department of Corrections (“CDCR”)

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recording his balances and deposits over the six-month period preceding the filing of his

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Complaint. (ECF No. 3.) These reports show Plaintiff has had no money in his trust

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account for the six months preceding the filing of this action, and that he had a zero balance

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at the time of filing. (ECF No. 3 at 1.) Plaintiff, as a prisoner with no assets, cannot be

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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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precluded from filing suit solely because he has no means to pay the initial filing fee or a

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portion thereof. 28 U.S.C. § 1915(b)(4); Bruce v. Samuels, 136 S. Ct. 627, 630 (2016);

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Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

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

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the lack of funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), but

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declines to “exact” any initial filing fee because his trust account statement shows he “has

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

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II.

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

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A.

Standard of Review

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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

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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 from suit. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

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1002, 1004 (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

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

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

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the 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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B.

Plaintiff’s Allegations

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Plaintiff has been diagnosed with “significant degenerative joint disease with

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significant full-thickness cartilage loss involving the medial compartment, as well as

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medial joint line.” (Compl. ¶ 24.) As a result, Plaintiff “suffers from extreme pain” and

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“significant discomfort” in his right knee. (Id. ¶ 25.) Plaintiff “require[s] the use of a

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wheelchair for his extreme mobility limitations.” (Id. ¶ 26.) He has been designated

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“Disability Impacting Placement Intermittent Wheelchair (DPO) status” which he indicates

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is an “ADA designation.” (Id.)

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Plaintiff alleges he “suffers from persistent pain and swelling to the right knee, which

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hinders his ability to walk and has created sporadic sleepless patterns.” (Id. ¶ 27.) Plaintiff
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claims an orthopedic surgeon wrote in “consultation notes” dated January 12, 2016 that

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“the only treatment that is going to alleviate [Plaintiff’s] discomfort is going to be a right

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total knee replacement.” (Id. ¶ 28.)

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Plaintiff has received other treatment including “injections on multiple occasions,

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physical therapy, x-rays on multiple occasions and an MRI on November 10, 2015.” (Id.

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¶ 31.) Plaintiff alleges that he has been “recommended for right total knee replacement

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surgery” for a second time on April 26, 2018 by Defendant Cham. (Id. ¶ 32.) Plaintiff

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claims to have been “ineffectively treated with nonsteroidal anti-inflammatory

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medications” for his pain. (Id. ¶ 33.)

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Plaintiff contends that, despite this, Defendants refused to authorize Plaintiff’s knee

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replacement surgery because they are unwilling to pay for it and because Defendants rely

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on the allegedly mistaken opinion that there was an “increased risk of periprosthetic joint

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infection due to Plaintiff’s obesity[,]” which Plaintiff maintains was only a “minimal to

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moderate” risk. (Id. ¶¶ 34–35.) Plaintiff alleges that this conduct “constitutes deliberate

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indifference to [his] serious medical needs” in violation of his Eighth Amendment right to

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be free from cruel and unusual punishment and seeks injunctive relief, along with

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compensatory and punitive damages. (Id. ¶¶ 136, 137–41.)

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C.

Applicable Law
1.

42 U.S.C. § 1983

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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).
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Eighth Amendment Claim

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

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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 omitted).

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“A determination of ‘deliberate indifference’ involves an examination of two elements: (1)

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the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s

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response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled

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on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)

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(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 significantly

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

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

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citing Wood v. Housewright, 900 F.2d 1332, 1337–41 (9th Cir. 1990); Hunt v. Dental

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Dept., 865 F.2d 198, 200–01 (9th Cir. 1989).

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D.

Analysis

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Upon review of the Complaint, the Court finds that Plaintiff has failed to state claims

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for an Eighth Amendment violations against Defendants Guldseth and Cham and has

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improperly joined the remaining Defendants to this action. For these reasons, more fully

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explained below, the Court dismisses the Complaint with leave to amend and dismisses

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Defendants Toor, Singh, and Shwe without prejudice.

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Plaintiff’s Eighth Amendment Claim

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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 from a “large complex tear of the medial meniscus” (Compl.

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¶ 24) in his knee is sufficient to show he suffered an objectively serious medical need. See

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McGuckin, 914 F.2d at 1059.

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

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Complaint fails to include any further “factual content” to show that either Defendant

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Guldseth (“Dr. Guldseth”) or Defendant Cham (“Dr. Cham”) acted with “deliberate

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indifference” to those needs.2 McGuckin, 914 F.2d at 1060; see also Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678.
Plaintiff alleges that he was first examined by Dr. Guldseth on February 8, 2017.

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(Compl. ¶ 37.)

At this examination, Dr. Guldseth purportedly determined to treat

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Plaintiff’s medical condition with “pain medication” rather than rely on a recommendation

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from a different physician that Plaintiff have “right total knee replacement.” (Id. ¶ 39.)

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When Plaintiff was examined again by Dr. Guldseth on April 26, 2017, Dr. Guldseth

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allegedly ordered an x-ray of Plaintiff’s knee and physical therapy. (Id. ¶ 46.) Ultimately,

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Dr. Guldseth referred Plaintiff to Dr. Cham, an Orthopedic Specialist, in January of 2018.

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(Id. ¶ 49.) In April of 2018, Plaintiff was examined by Dr. Cham for a “pre-operative visit”

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in which they “reviewed and discussed Plaintiff’s medical history of MRSA infection,

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diabetes, and obesity.” (Id. ¶ 52.) Plaintiff claims Dr. Cham “addressed the risk of

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complications with the surgery, including infection” and recommended that he “stop using

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morphine” prior to the surgery. (Id. ¶ 53.) Dr. Cham also “recommended Plaintiff lose

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weight prior” to proceeding with surgery. (Id.)
Plaintiff was scheduled for surgery on May 9, 2018 but the surgery was cancelled

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Plaintiff names five medical professionals as defendants in this action. (Compl. ¶¶ 9–23.) However,
Plaintiff only identifies “[t]he events giving rise to the claims against Defendants David Guldseth, M.D.
and Roman B. Cham, M.D. in this Complaint arose in the Country of San Diego, CA.” (Id. ¶ 2.) The
Court addresses the joinder of the remaining Defendants named in this action in Section II.D.2 of this
Order.
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due to Dr. Guldseth’s allegedly “unqualified determination that the surgery would not be

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appropriate until Plaintiff loses 50 lbs. and comes off the morphine pain treatment.” (Id.

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¶ 57.) However, it was later clarified that Dr. Cham cancelled his surgery. (See id. at 12-

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13.) Plaintiff denies that there was ever any specific recommendation that he lose weight

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prior to surgery. (Id. ¶ 65.)

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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 Guldseth and Cham’s

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“purposeful act or failure to respond to [his] pain or possible medical need,” and the “harm

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caused by [this] indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)

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

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and Cham’s acts or omissions must entail more than Plaintiff has alleged here—a

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difference of opinion as to whether Plaintiff was medically cleared for surgery. Snow v.

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McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted);

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Wilhelm, 680 F.3d at 1122. To the extent Plaintiff objects to the decisions made by these

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Defendants regarding the need to lose weight prior to surgery, “[a] difference of opinion

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between a physician and the prisoner–or between medical professionals–concerning what

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medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d at

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987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122–

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23. Instead, Plaintiff must plead facts sufficient to “show that the course of treatment the

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doctors chose was medically unacceptable under the circumstances and that the defendants

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chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681

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F.3d at 988 (citation and internal quotations omitted).

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Accordingly, the Court finds that the Complaint fails to state a claim for deliberate

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indifference under the Eighth Amendment against either Drs. Guldseth or Cham.

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

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

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Misjoinder

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Plaintiff also alleges claims against medical personnel when he was previously

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housed at Valley State Prison (“VSP”) “between the period of January 2015 through

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February 2, 2017.” (Compl. ¶ 89.) Federal Rule of Civil Procedure 20 states that

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Defendants may be joined in one action if “any right to relief is asserted against them

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jointly, severally, or in the alternative with respect to or arising out of the same transaction,

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occurrence, or series of transactions or occurrences” and “any question of law or fact

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common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A-B).

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Here, Plaintiff’s claims against prison officials at VSP do not arise out of the same

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set of “transactions or occurrences” as the claims against the RJD prison officials. As

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stated above, 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, 974 F.2d at 1059. This requires a different

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factual analysis as to the claims raised against VSP officials as opposed to the RJD officials.

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Moreover, it appears that some of Plaintiff’s claims against VSP officials may be subject

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to dismissal as they are likely barred pursuant to the applicable statute of limitations.

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If the requirements for permissive joinder under Rule 20 are not satisfied, courts may

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look to Rule 21. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Under Rule

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21, where a court finds misjoinder, “on its own” it may “drop a party” or “sever any claim

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against a party.” Fed. R. Civ. P. 21. Therefore, the Court severs all claims against

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Defendants Toor, Singh, and Shwe from this action and directs the Clerk of Court to

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terminate these Defendants from the action. This decision is without prejudice to permit

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Plaintiff to file a separate action in the appropriate venue regarding these claims.

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III.

Conclusion and Orders

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For the reasons explained, the Court:

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1.

GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
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(ECF No. 2);
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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 Ralph Diaz,

Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;
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DISMISSES Defendants Toor, Singh, and Shwe pursuant to Fed.R.Civ.P. 21

and without prejudice to re-filing in a separate action;
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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 as to Defendants

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Guldseth and Cham only. Plaintiff’s Amended Complaint must be complete by itself

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without reference to his original pleading. Defendants not named and any claim not re-

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alleged in his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1;

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Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d

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896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

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re-alleged in an amended pleading may be “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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6.

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

complaint to Plaintiff.
IT IS SO ORDERED.

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Dated: October 7, 2019

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