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United States District Court, S.D. California

October 11, 2005.

DAVID MARK GILL, CDC #P-69531, Plaintiff,

The opinion of the court was delivered by: WILLIAM HAYES, District Judge


Plaintiff, an inmate currently incarcerated at the Richard J. Donovan Correctional Facility in San Diego, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, while he was incarcerated at the San Diego County Central Jail, Defendants Vargas and Petty denied him adequate medical care and used excessive force in violation of his constitutional rights. See Compl. at 3-5.

Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a), but has instead submitted a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. I. Motion to Proceed IFP [Doc. No. 2]

  All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) & (2).

  Prisoners seeking leave to proceed IFP must also submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint. . . ." 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1), (4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

  While Plaintiff has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statement for the 6-month period immediately preceding the filing of his Complaint.*fn1 See 28 U.S.C. § 1915(a)(2); S.D.CAL. CIVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). Without Plaintiff's trust account statement, the Court is simply unable to assess the appropriate amount of the filing fee required to initiate this action. See 28 U.S.C. § 1915(b)(1). Therefore, Plaintiff's Motion to Proceed IFP [Doc. No. 2] must be DENIED.

  II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

  A. Standard of Review

  In addition, 28 U.S.C. § 1915A further obligates the Court to review complaints filed by prisoners, like Plaintiff, who are "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of IFP status. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).*fn2

  "Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Id. at 447 (citing Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir. 1997)). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, in giving liberal interpretation to a pro se civil rights complaint, the court may not, "supply essential elements of the claim that were not initially pled." Ivey v. Bd of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

  B. Application to Plaintiff's Complaint

  Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal citations omitted); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). As such, § 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

  A. Excessive Force claims

  Plaintiff alleges that Defendants Vargas and Petty used excessive force against him when they threw Plaintiff onto a "wooden bench inside a holding cell" and applied "pressure point/pain holds while pulling plaintiff from a sitting position." See Compl. at 4-5. Because Plaintiff claims to have been in San Diego County Jail at the time Deputies Vargas and Petty are alleged to have used excessive force against him, it is unclear whether the Eighth or Fourteenth Amendment applies to Plaintiff's claim. The Eighth Amendment's prohibition against the "malicious or sadistic" use of force, see Hudson v. McMillian, 503 U.S. 1, 7 (1992), does not apply "until after conviction and sentence." Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989). "Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

  Pretrial detainees, on the other hand, are protected by substantive due process, and may also challenge the use of force against them under the Fourteenth Amendment if that force is so excessive that it amounts to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979) ("[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law."). For pretrial detainees, "who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners." Id. at 545; Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir. 1991) (en banc) (holding that "deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal security interests under the Fourteenth Amendment," and "conduct that is so wanton or reckless with respect to the `unjustified infliction of harm as is tantamount to a knowing willingness that it occur,' will also suffice to establish liability because it is conduct equivalent to a deliberate choice.") (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)); see also White v. Roper, 901 F.2d 1501, 1507 (9th Cir. 1990) (for a pretrial detainee to show a violation of substantive due process, he must show "egregious government conduct in the form of excessive and brutal use of physical force."). In deciding whether that force is "excessive," the court should consider: "(1) the need for force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; and (4) whether the force was applied in good faith."). Id.; cf. Hudson, 503 U.S. at 7 (considering same four Whitley factors under Eighth Amendment excessive force analysis); see also Fontana v. Haskin, 262 F.2d 871, 881 (9th Cir. 2001) (citing Rochin v. California, 342 U.S. 165, 169 (1952) (holding that when conduct by governmental officials "offends those canons of decency and fairness which express the notions of justice of English-speaking peoples," and "shocks the conscience," Fourteenth Amendment substantive due process principles are violated)).

  Regardless of whether the Eighth or Fourteenth Amendments govern Plaintiff's cause of action under 42 U.S.C. § 1983, however, the Court finds that, under either standard outlined above,*fn3 Plaintiff has failed to allege facts sufficient to state an excessive force claim. Here, Plaintiff claims only that he was pulled up from a sitting position and thrown onto a wooden bench. See Compl. at 4-5. Any physical application of force against a person in custody, whether it be through brute strength, chemical or other weaponry, or mechanical restraint, may not be excessive. See Whitley, 475 U.S. at 312. "That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 10 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights"). Here, Plaintiff factual allegations that he was "thrown" onto a wooden bench and then forced to stand fail to demonstrate "egregious government conduct in the form of excessive and brutal use of physical force." White, 901 F.2d at 1507. Moreover, Plaintiff has alleged absolutely no facts to show the extent, nature or even existence of any injury, caused by Defendants Vargas or Petty, which was more than "de minimus." Hudson, 501 U.S. at 7 ("[T]he extent of injury suffered by an inmate . . . may suggest `whether the use of force could plausibly have been thought necessary' in a particular situation, `or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.'") (quoting Whitley, 475 U.S. at 321 (italics added)).

  Accordingly, the Court must dismiss Plaintiff's excessive force claims for failing to state a claim upon which relief can be granted. See 28 U.S.C. § 1915A(b)(1).

  B. Medical Care claims

  Plaintiff also alleges that Defendant Vargas "refused" to provide him with "needed medical care." See Compl. at 3. In order to assert a claim for inadequate medical care, Plaintiff must allege facts which are sufficient to show that each person sued was "deliberately indifferent to his serious medical needs."*fn4 Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Prison officials must purposefully ignore or fail to respond to Plaintiff's pain or medical needs; neither an inadvertent failure to provide adequate medical care, nor mere negligence or medical malpractice constitutes a constitutional violation. Estelle, 429 U.S. at 105-06. In addition, a mere difference of opinion between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Thus, to state a claim, Plaintiff must allege facts sufficient to show both: (1) an objectively "serious" medical need, i.e., one that a reasonable doctor would think worthy of comment, one which significantly affects his daily activities, or one which is chronic and accompanied by substantial pain, see Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); and (2) a subjective, and "sufficiently culpable" state of mind on the part of each individual Defendant. See Wilson v. Seiter, 501 U.S. 294, 302 (1991). In other words, Plaintiff must plead facts that show that Defendant Vargas knew of his "serious" need for medical attention and that each nevertheless disregarded his need despite the excessive risk posed to his health. See Farmer, 511 U.S. at 837. As currently pleaded, Plaintiff's Complaint fails to identify a serious medical need. Accordingly, the Court dismisses Plaintiff's inadequate medical care claims for failing to state a claim upon which § 1983 relief can be granted.

  For all these reasons, the Court finds that Plaintiff's Complaint must be DISMISSED sua sponte without prejudice for failing to state a claim upon which relief can be granted. See 28 U.S.C. § 1915A(b)(1); Resnick, 213 F.3d at 446. If Plaintiff chooses to file an Amended Complaint he must correct the deficiencies of pleading noted in this Order and he must specify whether he was a pretrial detainee or a state inmate at the time he alleges the constitutional violations occurred.

  III. Conclusion and Order

  For all the reasons set forth above, IT IS ORDERED that:

  (1) Plaintiff's Motion to Proceed IFP [Doc. No. 2] is DENIED and the action is DISMISSED without prejudice for failing to prepay the $250 filing fee mandated by 28 U.S.C. § 1914(a). Plaintiff if further GRANTED forty five (45) days from the date this Order is stamped "Filed" to either: (1) pay the entire $250 filing fee, or (2) submit a certified copy of his trust account statement for the 6-month period preceding the filing of his complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). IT IS FURTHER ORDERED that:

  (2) Plaintiff's Complaint is DISMISSED without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A. If Plaintiff chooses to proceed with this action, he must also within the same 45 days, file an Amended Complaint which corrects the problems of pleading described in this Order. If Plaintiff fails to amend, or if his Amended Complaint still fails to state a claim, he will be required to pay the entire $250 civil filing fee, pursuant to the installment provisions of 28 U.S.C. § 1915(b)(1), and may hereafter have the dismissal of this action counted as a "strike" against him under 28 U.S.C. § 1915(g).*fn5



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