Tabb v. NaphCare et al

Filing 14

ORDER DECLINING SERVICE AND GRANTING LEAVE TO AMEND 9 COMPLAINT; signed by Judge Theresa L Fricke. The Court grants plaintiff the opportunity to file an amended complaint to cure the deficiencies by February 28, 2022. (SP- cc: plaintiff w/Order, civil rights complaint form, Pro se Information Sheet)

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 1 of 10

1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

4
5
6

DANNY TABB,

7
8
9
10
11
12

v.

Case No. C21-5541 LK-TLF

Plaintiff,

NAPHCARE, HSA, PIERCE COUNTY
JAIL, OLSON, WENDY, BALDERAMA,
PERO, WATKINS, GENGA,

ORDER DECLINING SERVICE
AND GRANTING LEAVE TO
AMEND COMPLAINT

Defendants.
This matter comes before the Court on plaintiff’s filing of a civil rights complaint.

13

Dkt. 9. Plaintiff has been granted in forma pauperis status in this matter and is

14

proceeding pro se. Dkt. 8. Considering deficiencies in the complaint discussed below,

15

however, the undersigned will not direct service of the complaint at this time. On or

16

before February 28, 2022, plaintiff must either show cause why this cause of action

17

should not be dismissed or file an amended complaint.

18
19

DISCUSSION
The Court must dismiss the complaint of a prisoner proceeding in forma pauperis

20

“at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b)

21

“fails to state a claim on which relief may be granted”’ or (c) “seeks monetary relief

22

against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C.

23
24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 1

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 2 of 10

1

§ 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact.

2

Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).

3

Before the Court may dismiss the complaint as frivolous or for failure to state a

4

claim, though, it “must provide the [prisoner] with notice of the deficiencies of his or her

5

complaint and an opportunity to amend the complaint prior to dismissal.” McGucken v.

6

Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also Sparling v. Hoffman Constr., Co.,

7

Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir.

8

1987). On the other hand, leave to amend need not be granted “where the amendment

9

would be futile or where the amended complaint would be subject to dismissal.” Saul v.

10

United States, 928 F.2d 829, 843 (9th Cir. 1991).

11

To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the

12

conduct complained of was committed by a person acting under color of state law, and

13

(2) the conduct deprived a person of a right, privilege, or immunity secured by the

14

Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981).

15

Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these

16

elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).

17

Plaintiff’s complaint appears to relate to the defendants failing to replace his

18

hearing aids after they were damaged by the arresting officer. Dkt. 9 at 3. Plaintiff did

19

not identify the arresting officer by name; thus, it is unclear if the arresting officer is one

20

of the named defendants. Plaintiff also claims that his grievances relating to his hearing

21

aids and alleged disability have gone unanswered. Id. Plaintiff alleges that defendants

22

acted with deliberate indifference to a serious medical need for hearing aids. Id. at 6-7.

23
24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 2

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 3 of 10

1

He also alleges that his rights under the Americans with Disabilities Act (ADA) were

2

violated. Id.

3

While Plaintiff names several individual defendants, he fails to allege sufficient

4

facts from which it may be inferred whether any of the named defendants personally

5

acted, or omitted to act, in a manner that caused a violation of plaintiff’s constitutional or

6

federal statutory rights. The complaint puts together all “defendants” and claims they

7

have violated plaintiff’s rights but fails to connect specific defendants to specific acts or

8

omissions, and fails to allege facts concerning how any such acts or omissions may

9

have been causally connected to violations of plaintiff’s constitutional or federal

10
11

statutory rights.
The Court cannot properly screen the complaint until plaintiff complies with the

12

pleading requirements set forth in Rule 8 with respect to their claims. In this regard,

13

plaintiff should list his factual allegations according to the claims that plaintiff is asserting

14

as to each individual defendant -- rather than describing all of their factual allegations

15

together against the defendants as a group. In addition, in order to state a claim, plaintiff

16

must include more than “naked assertions,” “labels and conclusions” or “a formulaic

17

recitation of the elements of a cause of action.” Bell Atlantic Corp. v Twombly, 550 U.S.

18

544, 555-557 (2007). A claim upon which the court can grant relief has facial plausibility;

19

in other words, a claim has “facial plausibility when the plaintiff pleads factual content

20

that allows the court to draw the reasonable inference that the defendant is liable for the

21

misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937,1949 (2009).

22
23

Plaintiff is advised that in order to state a claim under 42 U.S.C. § 1983, a
complaint must establish “the violation of a right secured by the Constitution and the

24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 3

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 4 of 10

1

laws of the United States, and must show that the alleged deprivation was committed by

2

a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). In the

3

amended complaint, plaintiff must write out short, plain statements telling the Court: (1)

4

the constitutional or federal statutory right plaintiffs believe was violated; (2) the name of

5

the person who violated the right; (3) exactly what that person did or failed to do; (4)

6

how the action or inaction of that person is connected to the violation of plaintiff’s

7

constitutional or federal statutory rights; and (5) what specific injury plaintiff suffered

8

because of that person’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371–72 (1976).

9

If the person named as a defendant was a supervisory official, plaintiff must (if he

10

can do so in good faith) state facts to show: either -- that the defendant personally

11

participated in the constitutional deprivation (and tell the Court the five things listed

12

above); or -- that the defendant was aware of the similar widespread abuses, but with

13

deliberate indifference to plaintiff’s constitutional rights, failed to take action to prevent

14

further harm to plaintiff. See Monell v. New York City Department of Social Services,

15

436 U.S. 658, 691 (1978).

16

Plaintiff must repeat this process regarding each non-supervisory, or supervisory,

17

person he names as a defendant, including any “John Doe” and “Jane Doe” defendants.

18

If plaintiff fails to affirmatively link the conduct of each named defendant with the specific

19

injury suffered by plaintiff, the claim against that defendant will be dismissed for failure

20

to state a claim. Conclusory allegations that a defendant or a group of defendants have

21

violated a constitutional right are not acceptable and will be dismissed. Ashcroft v. Iqbal,

22

129 S.Ct. 1937,1949 (2009).

23
24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 4

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 5 of 10

1

The plaintiff should state all of his allegations relating to each claim under

2

separate headings and within those headings should describe exactly what happened,

3

who was involved – with descriptions of specific acts or omissions of any individual

4

defendant who allegedly was involved, and also set forth any facts that would show how

5

their individual involvement caused the alleged violation of federal law. If plaintiff fails to

6

do so, the Court may recommend dismissal of insufficient claims.

7

In the following paragraphs, some of the legal standards that may apply to

8

plaintiff’s claims are set forth. Plaintiff should carefully review the standards and amend

9

only those claims that he believes, in good faith, are supported by facts and law.

10

Deliberate Indifference

11

Based on plaintiff’s asserted status as a pretrial detainee, the Court construes

12

the complaint as purporting to state a claim under 42 U.S.C. § 1983 for a violation of

13

plaintiff’s Fourteenth Amendment rights to medical care. Yet plaintiff’s complaint fails to

14

provide sufficient factual allegations regarding defendants’ conduct, and thus as

15

currently written, it fails to state a claim for deliberate indifference to plaintiff’s medical

16

needs.

17

Under Section 1983, Plaintiff must show that each of the defendants was

18

involved in violating the Constitution with individually culpable action or inaction. Hines

19

v. Youseff, 914 F.3d 1218 1228 (9th Cir. 2019). Section 1983 actions may be not

20

brought against a supervisor on a theory that the supervisor is liable for the acts of his

21

or her subordinates. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658,

22

691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Polk County v. Dodson, 454 U.S. 312,

23

325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981). Likewise, a supervising official may not be

24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 5

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 6 of 10

1

held liable for violations made in accordance with a municipality’s policy in lieu of the

2

municipality. See City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting

3

Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978)). Instead, only the individual

4

actions of the defendants – whether participation or direction of the alleged violation, or

5

knowing of the violation and failing to act to prevent it – can make a defendant liable for

6

violations under his or her supervision. See Barren v. Harrington, 152 F.3d 1193, 1194

7

(9th Cir. 1998), cert. denied, 525 U.S. 1154, 119 S. Ct. 1058, 143 L. Ed. 2d 63 (1999).

8
9

To state a Fourteenth Amendment claim relating to medical care of a pre-trial
detainee, a plaintiff must include factual allegations that a state actor acted, or failed to

10

act, in a manner that shows deliberate indifference to his serious medical needs.

11

Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). The deliberate

12

indifference standard under the Fourteenth Amendment (in contrast with the Eighth

13

Amendment standard, that has a subjective component) is objective. Id.

14

The elements are: “(i) the defendant made an intentional decision with respect to

15

the conditions under which the plaintiff was confined; (ii) those conditions put the

16

plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take

17

reasonable available measures to abate that risk, even though a reasonable official in

18

the circumstances would have appreciated the high degree of risk involved – making

19

the consequences of the defendant’s conduct obvious; and (iv) by not taking such

20

measures, the defendant caused the plaintiff’s injuries.” Id., at 1125. The defendant’s

21

conduct must be objectively unreasonable; concerning element (iii), plaintiff is required

22

to show more than negligence, but less than subjective intent – “something akin to

23

reckless disregard.” Id. (citations and internal quotations omitted).

24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 6

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 7 of 10

1

Here, plaintiff’s complaint contains conclusory allegations that the

2

“jail/state/county” and “medical staff” failed to take action when plaintiff requested new

3

hearing aids. Dkt. 9 at 3. Plaintiff has not alleged what risks he faced or what harm he

4

suffered during the time alleged in the complaint. This is insufficient to demonstrate that

5

the defendants put plaintiff at substantial risk of serious harm, or that the defendants’

6

inactions had injured plaintiff. Further, if the allegations are purely that the defendants

7

denied grievances, and there are no allegations that they “directly participated,

8

encouraged, authorized or acquiesced” in the claimed harm, the necessary showing of

9

personal participation has not been made. Hayes v. Dovey, 2011 WL 1157532, at *6

10

(S.D. Cal. Mar. 28, 2011) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.

11

1999)); see Johnson v. Hayden, 2012 WL 652586, at *3 (D. Or. Feb. 10, 2012) (citing

12

Shehee, 199 F.3d at 300) (it is not unconstitutional to merely deny a grievance).

13

Without further details of the defendants’ conduct and affirmative link to a

14

resulting injury, the complaint is insufficient to bring claims against the defendants. See

15

Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). If plaintiff intends to pursue this

16

claim, he should include all of his factual allegations against specifically named

17

defendants relating to this claim in one section of the amended complaint. Their factual

18

allegations must support every element of the claim as described above.

19

Americans with Disabilities Act (ADA)

20

Plaintiff generally alleges violations of the ADA. However, it is unclear whether

21

plaintiff is alleging any specific defendants committed particular ADA violations, or

22

whether plaintiff is attempting to bring his ADA claims against defendants in their

23

individual or official capacities. To the extent plaintiff is attempting to bring these claims

24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 7

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 8 of 10

1

against defendants in their individual capacities, plaintiff fails to state a claim because

2

individual liability is precluded under the ADA. Stewart v. Unknown Parties, 483 F. App’x

3

374, 374 (9th Cir. 2012) (citing Lovell v. Chander, 303 F.3d 1039, 1052 (9th Cir. 2002));

4

see also Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.

5

2001) (Title II of the ADA does not provide for individual capacity suits against state

6

officials.).

7

To the extent plaintiff is attempting to bring ADA claims against defendants in

8

their official capacities, the ADA provides a “qualified individual with a disability” cannot,

9

“by reason of such disability, be excluded from participation in or be denied the benefits

10

of the services, programs, or activities of a public entity, or be subjected to

11

discrimination by any such entity.” 42 U.S.C. § 12132.

12

“To state a claim of disability 1 discrimination under Title II [of the ADA], the

13

plaintiff must allege four elements: (1) the plaintiff is an individual with a disability; (2)

14

the plaintiff is otherwise qualified to participate in or receive the benefit of some public

15

entity's services, programs, or activities; (3) the plaintiff was either excluded from

16

participation in or denied the benefits of the public entity's services, programs, or

17

activities, or was otherwise discriminated against by the public entity; and (4) such

18

exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.”

19

Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). In order to recover money

20

damages under Title II, a plaintiff must prove that he was discriminated against

21
22
23
24

1 The term “disability” under the ADA means, “(A) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). Major life
activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” 42 U.S.C. § 12102(2).

25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 8

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 9 of 10

1

intentionally and the Ninth Circuit uses the “deliberate indifference standard.” Duvall v.

2

County of Kitsap, 260 F.3d 1124, 1138–39 (9th Cir. 2001). To prove intentional

3

discrimination, Plaintiff must show: 1) that a public entity had knowledge that a violation

4

of his rights under the ADA was substantially likely to occur; and 2) at a minimum, the

5

public entity failed to act. Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002).

6

Plaintiff has failed to allege facts showing defendants discriminated against him

7

on the basis of his alleged disability. “The ADA prohibits discrimination because of

8

disability, not inadequate treatment for disability.” Simmons v. Navajo Cty, 609 F.3d

9

1011, 1022 (9th Cir. 2010) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)

10

(“[T]he Act would not be violated by a prison's simply failing to attend to the medical

11

needs of its disabled prisoners.... The ADA does not create a remedy for medical

12

malpractice.”)).

13

If plaintiff intends to pursue this claim, he should include all of his factual

14

allegations against specifically named defendants relating to this claim in one section of

15

the amended complaint. Their factual allegations must support every element of the

16

claim as described above.

17

CONCLUSION

18

The Court DECLINES to serve the complaint which, as discussed above, is

19

deficient. Thus, the Court grants plaintiff the opportunity to file an amended complaint to

20

cure the above-mentioned deficiencies by February 28, 2022. The amended complaint

21

must carry the same case number as this one. Plaintiff should list his claims in

22

separately numbered paragraphs containing all relevant factual allegations relating to

23

each separately numbered claim. The amended complaint will act as a complete

24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 9

Case 3:21-cv-05541-LK-TLF Document 14 Filed 01/10/22 Page 10 of 10

1

substitute for the prior operative complaint. Any cause of action alleged in the original

2

complaint that is not alleged in the second amended complaint is waived. Forsyth v.

3

Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds,

4

Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).

5

The Court will screen the amended complaint to determine whether it contains

6

factual allegations linking each defendant to the alleged violations of plaintiff’s rights. If

7

the amended complaint is not timely filed, or fails to adequately address the issues

8

raised herein, the Court may recommend dismissal of the action. The Clerk is directed

9

to send plaintiffs the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint

10

and for service, a copy of this Order and the Pro Se Information Sheet.

11
12

Dated this 10th day of January, 2022.

13
14

A

15

Theresa L. Fricke
United States Magistrate Judge

16
17
18
19
20
21
22
23
24
25
ORDER DECLINING SERVICE AND GRANTING
LEAVE TO AMEND COMPLAINT - 10