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Sheppard v. Hood

United States District Court, S.D. California

April 23, 2015

RODNEY G. HOOD, MD, et al., Defendants.


CYNTHIA BASHANT, District Judge.

William Henry Sheppard ("Plaintiff"), currently incarcerated at California Men's Colony ("CMC") in San Luis Obispo, California, and proceeding pro se, has filed a civil rights complaint ("Compl.") pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).

Plaintiff claims six doctors employed by Alvarado Hospital in San Diego provided him inadequate treatment and committed "medical malpractice" in 2010 after he was transported there from Centinela State Prison ("CEN") for emergency gallbladder surgery. ( See Compl., ECF Doc. No. 1, at 1, 3.) Plaintiff claims that during the surgery Defendants inserted a "ERCP stent, " and that it was not until sometime in 2013, after he developed an infection, pancreatitis, and diabetes, that he was told by unidentified prison medical officials at CEN that his ailments were "caused by" the stent which was intended to be temporary. (Id. ) Plaintiff seeks $6 million in general and compensatory damages against the doctors at Alvarado. (Id. at 7.)

Plaintiff has not prepaid the filing fees required by 28 U.S.C. § 1914(a) to commence a federal civil action; instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF 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 $400. See 28 U.S.C. § 1914(a).[1] An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of [his] trust fund account statement (or institutional equivalent) for... the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 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); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff's trust account statement, as well as the attached prison certificate issued by an accounting officer at CMC verifying his available balances. Plaintiff's statements show that while he had average monthly deposits of $24.67 to his account, and an average monthly balance of $4.26 during the 6-month period preceding the filing of this action, he had only $.02 in his account at the time of filing. Thus, while the Court assesses Plaintiff's initial partial filing fee at $4.93 pursuant to 28 U.S.C. § 1915(b)(1), it appears he is unable to pay that initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay... due to the lack of funds available to him when payment is ordered.").

Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF Doc. No. 2), and will direct the California Department of Corrections and Rehabilitation ("CDCR") to collect the entire $350 balance of the filing fees mandated by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).


A. Standard of Review

Notwithstanding Plaintiff's IFP status or the payment of any partial filing fees, the PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] 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." 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these screening statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

All complaints must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[W]hen 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."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").

However, while the Court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, " Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

B. 42 U.S.C. § 1983

"Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights." Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). 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 quotation marks and citations omitted). "To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

C. State Action

First, the Court finds Plaintiff's Complaint fails to state a claim and must be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) and § 1915A(b)(1) because it alleges no facts to show that any of the named Defendants, all identified only as physicians employed by Alvarado Hospital, acted under color of state law. Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

"[P]rivate parties [do] not generally act[] under color of state law." Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Therefore, courts "start with the presumption that private conduct does not constitute governmental action." Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). "In order for private conduct to constitute governmental action, something more' must be present." Id. (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982)).

In the context of medical services provided to prisoners like Plaintiff, the Supreme Court has held that "something more, " requires him to allege that the "private physician or hospital, " he seeks to sue has "contract[ed] with a public prison system to provide treatment for inmates, " and has "perform[ed] a public function" sufficient to "be found to [have] act[ed] under color of law for purposes of § 1983." West v. Atkins, 487 U.S. 42, 56 n.15 (1988).

Here, Plaintiff has failed to allege that the Alvarado doctors he seeks to hold liable were employed by or acted under contract with the state of California to provide medical services to its prisoners when they treated him in 2010. Therefore, his Complaint fails to state a claim under § 1983 because it lacks the "factual content" required to show Defendants' actions were "fairly attributable to the State." Id. at 54; Iqbal, 556 U.S. at 678; cf. Lopez v. Dep't of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (finding district court's sua sponte dismissal improper where prisoner's complaint contained allegations that defendants, a private hospital and ambulance service did act "under contract with the state of Arizona to provide medical services to indigent citizens.").

D. Individual Liability

Second, even if Plaintiff had alleged the Alvarado doctors he has named as Defendants acted under color of state law, his Complaint also fails to "plead that each... defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676; see also Jones v. Cmty. Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must "allege with at least some degree of particularity overt acts which defendants engaged in" in order to state a claim); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) ("Liability under § 1983 must be based on the personal involvement of the defendant.").

As currently pleaded, Plaintiff's Complaint simply lists six individual physicians as Defendants in the caption, see Compl. at 1, 2, but the body of his pleading makes no further mention of any of these doctors, except for Dr. Hood, who is alleged in only a perfunctory and wholly conclusory fashion to have "showed deliberate indifference to [his] serious medical needs." Id. at 3.

Each defendant may be held liable under § 1983 only if he or she is alleged to have been "personally involved in the constitutional deprivation." Lolli v. Cnty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003). Plaintiff's Complaint, however, fails to include any "factual content that [would] allow[] the court to draw [a] reasonable inference" in support of an individualized constitutional violation personally committed by any of the named doctors. Iqbal, 556 U.S. at 678 ("A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'") (quoting Twombly, 550 U.S. at 555, 557.) To show personal liability, Plaintiff must include in his pleading at least some description of personal acts taken by each individual defendant which he believes caused his Eighth Amendment rights to be violated. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Iqbal, 556 U.S. at 678 (noting that while "detailed factual allegations" are not required, "unadorned, the defendant-unlawfully-harmed-me accusation[s]" are insufficient to state a claim to relief that is "plausible on its face.") (citing Twombly, 550 U.S. at 555, 570.)

For this additional reason, the Court finds Plaintiff's Complaint fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

E. Inadequate Medical Care

Finally, the Court finds that Plaintiff's Complaint also fails to adequately plead a constitutional violation-namely, an Eighth Amendment claim based on inadequate medical care. A prisoner's claim of inadequate medical care does not constitute cruel and unusual punishment unless it rises to the level of "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). This standard "consists of two parts, " one objective, and one subjective. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must act with a "sufficiently culpable state of mind, " which entails more than mere negligence, but less than conduct undertaken "for the very purpose of causing, harm." Id. at 837. A prison official does not act with deliberate indifference unless he or she "knows of and disregards an excessive risk to inmate health or safety." Id. "If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk." Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002) (citation omitted).

Moreover, "the indifference to [a prisoner's] medical needs must be substantial. Mere indifference, ' negligence, ' or medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (quoting Estelle, 429 U.S. at 105-06.) "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin v. Smith, 974 F.2d 1050, 1050 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

Here, the Court finds Plaintiff's claims of having suffered an infection, pancreatitis, and diabetes, which he alleges were "caused by the prolonged and excessive implantation of [a] temporary stent, " (Compl., ECF Doc. No. 1 at 3), are sufficient to show a facially plausible and objectively serious medical need. See McGuckin, 974 F.2d at 1059-60 (The "existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a serious' need for medical treatment."); Rodenhurst v. Hawaii, No. CV10-1237-PHX-GMS, 2010 WL 3719296, at *6 (D. Ariz. Sept. 15, 2010) (finding prisoner's "pancreatitis, high cholesterol, diabetes and renal insufficiency" sufficient to show he suffered a "serious medical need"), aff'd sub nom. Rodenhurst v. Bauman, 509 F.Appx. 634 (9th Cir. 2013); Iqbal, 556 U.S. at 678.

However, Plaintiff's Complaint fails to further contain enough "factual content" which would "allow the court to draw a reasonable inference" of deliberate indifference on the part of any named Defendant. Iqbal, 556 U.S. at 678. At most, and assuming Plaintiff's allegations are true, the error he describes sounds only in negligence; indeed, he himself claims his injuries were the result of "medical malpractice, " "negligence, " and "incompetence." (Compl., Doc. No. 1, at 3.) And while he also describes Dr. Hood as having acted with "deliberate indifference, " ( id. ), he does not further support this conclusion by alleging facts to show that Hood, or any other Defendant, "kn[ew] of and disregard[ed] an excessive risk to [his] health or safety" when implanted the stent which is alleged to have caused him harm three years later. Farmer, 511 U.S. at 837. Deliberate indifference is "a state of mind more blameworthy than negligence" and it "requires more than ordinary lack of due care for the prisoner's interests or safety.'" Id. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

Therefore, the Court finds that Plaintiff's Complaint fails to allege facts sufficient to support an Eighth Amendment claim against any Defendant and that it is subject to dismissal for this additional reason pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

F. Leave to Amend

Because Plaintiff is proceeding without counsel, and it is not "absolutely clear that no amendment can cure" the defects of pleading set forth above, the Court will grant him an opportunity to amend. See Lucas v. Dept. of Corr., 66 F.3d 245, 248 (9th Cir. 1995); Lopez, 203 F.3d at 1131.


For the reasons set forth above, the Court:

1. GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2).

2. DIRECTS the Secretary of the CDCR, or his designee to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding them to the Clerk of the Court each time the amount in his account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeffrey A. Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California, XXXXX-XXXX.

4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and GRANTS him forty-five (45) days leave from the date of this Order in which to file an Amended Complaint that cures the deficiencies of pleading described above. Plaintiff's Amended Complaint must be complete by itself without reference to his original complaint. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n amended pleading supersedes the original."); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be "considered waived if not repled.").

Should Plaintiff elect not to proceed by filing a Amended Complaint within the time provided, the Court will enter a final Order of dismissal of this civil action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and for failure to prosecute in compliance with a Court Order requiring amendment.


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