United States District Court, C.D. California
December 16, 2014
CALVIN J. CALVIN, Plaintiff,
ORANGE COUNTY SHERIFF'S DEP'T, et al., Defendants
Calvin J Calvin, Petitioner, Pro se, Orange, CA.
For Orange County Sheriff Department, Respondent: Suzanne Esther Shoai, LEAD ATTORNEY, County of Orange, Office of the County Counsel, Santa Ana, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CARLA M. WOEHRLE, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For reasons stated below, Defendant's motion to dismiss should be granted and this action should be dismissed, with prejudice, for failure to state a claim.
BACKGROUND AND PROCEEDINGS
Plaintiff Calvin J. Calvin is a prisoner in the custody of the Orange County Sheriff's Department pursuant to a state court conviction. Plaintiff is proceeding pro se and in forma pauperis on a civil rights complaint naming governmental defendants and addressing conditions of confinement. His Complaint, dated August 10, 2013, was first submitted to the United States District Court for the Northern District of California, which ordered it transferred to this District. It was filed here on September 17, 2013. [Docket no. 14.] The Complaint was dismissed, with leave to amend, in the Memorandum and Order (" M& O") filed November 12, 2013. [Docket no. 19.]
Plaintiff's First Amended Complaint (" FAC") was filed on December 4, 2013, and named two defendants, the Orange County Sheriff's Department (" OCSD") and the California Department of Corrections and Rehabilitation (" CDCR"). [Docked no. 20.] On January 16, 2014, the court granted Plaintiff leave to proceed in forma pauperis. [Docket no. 21.] Defendant OCSD filed its Motion to Dismiss (" MTD") on March 25, 2014. [Docket no. 26.] Plaintiff filed his Opposition (" Opp.") on April 23, 2014. [Docket no. 30.] Defendant OCSD filed its Reply (" Rep.") on May 6, 2014. [Docket no. 31.] Defendant OCSD filed a notice of improper service (with respect to Defendant CDCR) on May 6, 2014. [Docket no. 32.] The motion to dismiss has been taken under submission without oral argument.
STANDARD OF REVIEW
Complaints such as Plaintiff's are subject to the court's sua sponte review under provisions of the Prison Litigation Reform Act of 1995 (" PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the court finds that it (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. See Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc); 28 U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); 28 U.S.C. § 1915A(b)(prisoner complaints against government defendants); 42 U.S.C. § 1997e(c)(complaints re: prison conditions).
" Failure to state a claim" has the same meaning on PLRA review that it has in review of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Knapp v. Hogan, 738 F.3d. 1106, 1109 (9th Cir. 2013). A Rule 12(b)(6) motion to dismiss for failure to state a claim " 'tests the legal sufficiency of a claim.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)(quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). Dismissal for failure to state a claim may be based on " 'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'"
Conservation Force, 646 F.3d at 1242 (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses a fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984) (citing 2A Moore's Federal Practice ¶ 12.08).
To survive review for failure to state a claim, a complaint must allege facts sufficient " 'to state a facially plausible claim to relief.'"
Conservation Force, 646 F.3d at 1242 (quoting Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). " A complaint is properly dismissed under Rule 12(b)(6) unless it contains enough facts to state a claim to relief that is plausible on its face. . . . Well-pleaded factual allegations are taken as true, but conclusory statements or bare assertions are discounted." Recinto v. U.S. Dep't of Veterans Affairs, 706 F.3d 1171, 1177 (9th Cir. 2013)(citing Ashcroft v. Iqbal, 556 U.S. 662, 681, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); other citations and internal quotation marks omitted)).
If the court finds that a complaint should be dismissed for failure to state a claim, the court may dismiss with or without leave to amend.
Lopez, 203 F.3d at 1126-30. Leave to amend should be granted if it appears the defects can be corrected, especially if the plaintiff is appearing pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). If, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend.
Cato, 70 F.3d at 1107-11.
Plaintiff brings suit under 42 U.S.C. § 1983. The elements of a § 1983 claim are that a person, acting under color of state law, deprived a plaintiff of a right under the federal constitution or laws. See Miranda v. Clark County, 279 F.3d 1102, 1106 (9th Cir. 2002)(citing West v. Atkins, 487 U.S. 42, 48-49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). Plaintiff claims that he has been denied proper health care in violation of the Eighth Amendment guarantee against cruel and unusual punishment. [FAC.]
Plaintiff alleges that he tore his Achilles tendon while playing basketball on June 23, 2006, and attaches medical records from that time. In July of 2006, he was arrested for a parole violation and returned to CDCR custody. At an unspecified time he was transferred to OCSD custody and is now serving his state sentence in a county facility. While in OCSD custody, he somehow re-injured his Achilles tendon. He seeks injunctive relief in the form of an order directing that be released to have surgery at an outside hospital. Plaintiff also contends that because of the disability resulting from his untreated injury he has been unable to qualify for the " fire camp" program, which would allow him to earn custody credits. Accordingly, he also seeks a reduction in his sentence apparently based on credits he might have earned by participation in the fire camp program. [FAC and attached " Argument 1, Argument 2, " and exhibits; Opp. and exhibit.]
GROUNDS FOR DISMISSAL
Claims by prisoners brought under § 1983 for denial of medical care are reviewed under an Eighth Amendment standard. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). To support such a claim, a plaintiff must show both that a deprivation of medical care was objectively serious, and that a defendant acted with a subjectively culpable state of mind amounting to at least " deliberate indifference." See Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). " Deliberate indifference" means a defendant " knew of and disregarded" a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Johnson v. Meltzer, 134 F.3d 1393, 1398 (9th Cir. 1998). It is not enough that a defendant was aware of facts from which an inference could be drawn that there was a substantial risk of serious harm; instead, the defendant must have also made the inference. Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). Deliberate indifference may be found when " officials deny, delay, or intentionally interfere with medical treatment, " or it may appear in the manner in which physicians provide medical care. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). In either case, deliberate indifference must be purposeful and substantial; mere negligence or inadvertence or a difference in medical judgment or opinion does not amount to a constitutional violation. See Estelle v. Gamble, 429 U.S. at 105-06 (negligence in diagnosis or treatment does not support constitutional claim; medical malpractice does not become constitutional violation merely because the victim is a prisoner); Jackson v. McIntosh, 90 F.3d 330, 331 (9th Cir. 1996)(mere difference of medical opinion does not support a constitutional claim).
Here, Plaintiff has not shown that failure to provide him surgery now for an injury that occurred in 2006 is an objectively serious deprivation of medical care. Plaintiff has also not offered any allegations showing that any defendant denied him medical care (as opposed to simply failing to provide the specific care he seeks -- release for surgery at an outside hospital), let alone that any defendant acted with deliberate indifference in doing so. On the contrary, Plaintiff has indicated that he is receiving medical treatment, apparently including physical therapy. [Opp. and exhibit.] Although this may not be the treatment Plaintiff wants, that is not sufficient to show deliberate indifference.
Furthermore, a municipal defendant, such as the County Sheriff's Department may only be liable on a § 1983 claim if the asserted constitutional violation was caused by a municipal policy or custom. See Board of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 407-08, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see also Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Here, Plaintiff has not pled or provided any factual allegations to support a claim that a policy or practice of the Sheriff's Department or County caused the alleged violation of his rights. Finally, Plaintiff has not alleged any facts supporting a claim for injunctive relief against the CDCR based on Plaintiff's claim that he is being denied medical treatment by the OCSD.
DENIAL OF LEAVE TO AMEND
Plaintiff was informed of these defects in the Memorandum and Order dismissing the original Complaint with leave to amend. He has failed to correct them and it does not appear that he can successfully amend his claims, consistent with his factual allegations, to state a cognizable claim for injunctive relief against the named defendants. Therefore, the FAC should be dismissed without further leave to amend.
Accordingly, the magistrate judge recommends that the court issue an order: (1) accepting this Report and Recommendation; (2) granting Defendant OCSD's Motion to Dismiss (docket no. 26, filed March 25, 2014; (3) dismissing the First Amended Complaint without leave to amend; and (4) dismissing this action, with prejudice, for failure to state a claim.