Jacques v. McDonald

          MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On July 15, 2016, Michael Jacques (“Plaintiff”), a California state prisoner who is proceeding pro se and in forma pauperis (“IFP”), filed the operative amended civil rights complaint (the “Complaint”) in this action concerning the medical treatment, and lack thereof, that Plaintiff received while in the custody of the Los Angeles County Sheriff’s Department at the Twin Towers Correctional Facility (“Twin Towers”). (Dkt. No. 8.)

         In civil actions where the plaintiff is proceeding IFP, Congress requires district courts to dismiss the complaint “at any time” if the court determines that the complaint, or any portion thereof: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief.^[1]28 U.S.C. § 1915(e)(2). In determining whether a complaint should be dismissed at screening, the Court applies the standard of Federal Rule of Civil Procedure 12(b)(6): “[a] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). Thus, the plaintiff’s factual allegations must be sufficient for the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and internal quotation marks omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level.”).

         When a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (citations and internal quotation marks omitted)). In giving liberal interpretation to a pro se complaint, however, the court may not supply essential elements of a claim that were not initially pled, Byrd v. Maricopa County Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011), and the court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences, ” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

         If the court finds that a pro se complaint fails to state a claim, the Court may dismiss the complaint with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). A court must give a pro se litigant leave to amend the complaint unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar, 698 F.3d at 1212 (internal quotation marks omitted); Lira v. Herrera, 427 F.3d 1164, 1176 (9th Cir. 2005). However, if amendment of the pleading would be futile, leave to amend may be denied. See Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010); see also Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (when a district court has already granted a plaintiff leave to amend, its discretion to subsequently deny leave to amend is “particularly broad”).

         For the following reasons, the Court finds that the instant Complaint fails to state a cognizable claim for relief and must be dismissed.^[2] However, leave to amend is granted.

         II. ALLEGATIONS OF THE COMPLAINT

         Plaintiff sues the following Los Angeles County Sheriff’s Department employees: Jim McDonnell, Los Angeles County Sheriff, in his individual and official capacity; John Doe 1, deputy sheriff, in his individual capacity; Deputy Perez, in his individual capacity; Deputy Adeppa, in his individual capacity; Deputy Hadnot, in his individual capacity; Nurse Lopez, in her individual capacity; John Doe 2, a registered nurse, in his individual capacity; Deputy Rojas, in his individual capacity; and Nurse Shipman, in her individual capacity. (Complaint at 3-4B.)

         Plaintiff alleges that while he was a pretrial detainee at the Twin Towers the eight defendants being sued solely in their individual capacity (Defendants Does 1-2, Perez, Adeppa, Hadnot, Rojas, and Shipman) were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. He alleges that Sheriff McDonnell is liable for these eight defendants’ misconduct because “he is legally responsible for the overall operations of both the Sheriff[’s] Department and each institution under its jurisdiction . . . as well as legally responsible for the operation of the welfare of all pretrial detainees, parolees, and convicted prisoners.” (Complaint, Attach. at 2.)

         Plaintiff alleges that Defendant Perez made “inflammatory and degrading comments” to Plaintiff during meal and medication times, and Plaintiff “attempted to redress” those comments. (Complaint, Attach. at 5.) On August 21, 2015, around 3:00pm, Plaintiff began feeling light-headed and dizzy. (Id. at 6.) He banged on his cell door, yelled for Defendant Perez, and yelled “man down” to indicate that he was in serious medical trouble. (Id.) Plaintiff also yelled his own name and cell number. (Id.) “Perez [then] looked directly at Plaintiff’s cell seeing [Plaintiff] falling as Perez walked out the entrance of the 142-A-Pod slamming the pod door behind him without the slightest hesitation checking to make sure Plaintiff was okay.” (Id.) Within five minutes of Defendant Perez’s departure, Plaintiff experienced a “violent seizure, ” which caused him “to hit head so hard that [Plaintiff] saw tiny micro dots and split head open above upper left eye.” (Id.) When Plaintiff regained consciousness, he was lying on the ground, and Defendant John Doe 1 walked by as part of a “Title 15 security check” and “witnessed [Plaintiff] on the ground and did nothing.” (Id. at 7.)

         Thirty to forty minutes later, Plaintiff overhead Defendant Perez tell Nurse Shipman to “forget about Plaintiff, he already went man down to the main clinic earlier in the morning.” (Complaint, Attach. at 7.) Plaintiff asserts that he had not gone to the main clinic that morning because, although he received a pass to go to the clinic to have his gunshot wound cleaned, he also had a “chronicle white card” instructing him to shower after 1:30pm and before having his gunshot wound cleaned and bandaged. (See id.) Accordingly, he did not use the pass because he needed to shower before having his gunshot wound cleaned and bandaged. (See id.)

         Plaintiff explained to Defendants Perez and Shipman that “Perez was lying, ” to which Defendant Perez responded “Who do you think you are? Pinche mayotay faggot.”^[3](Complaint, Attach. at 8.) Plaintiff, who was apparently still sitting on the floor following the seizure (see Id. at 8, 10), explained to Defendant Shipman that he had suffered a seizure and hit his head. (Id.) Defendant Shipman responded, “Yes, I see your head bleeding. I understand your head bleeding but just take this pill and seizures stop just ordered by doctor.” (Id.) (errors in original). Plaintiff states that the pill Defendant Shipman gave him was a psychotropic medication, Geodon, “which has nothing to do with seizures.” (Id.) Nevertheless, Defendant Shipman insisted that it was his seizure medicine, saying “No, this your seizure med and it stop seizures listen to me I’m nurse.” (Id.) (errors in original). Plaintiff suggests that he was then turned away and did not receive treatment for his bleeding head. (Id. at 8-9.)

         Fifteen to twenty minutes later, Deputy Adeppa conducted his Title 15 security check, and Plaintiff begged him to “please help.” (Complaint, Attach. at 9.) Defendant Adeppa responded, “They know too man. I’m sorry I can’t do everything around here, I’m only one person.” (Id. at 9-10.) Plaintiff states that Defendant Adeppa “walk[ed] off leaving Plaintiff on cell floor.” (Id. at 10.)

         Another 15-20 minutes passed and Defendant Hadnot came to check on Plaintiff. (Complaint, Attach. at 10.) When asked if he was all right, Plaintiff replied, “No! I had a seizure and I hit my head you see it bleeding? I was seeing tiny micro dots.” (Id.) Defendant Hadnot responded, “Yes, I see your head bleeding. Hold on.” (Id.) Detective Hadnot returned three to five minutes later and again asked Plaintiff how he was feeling. (Id.) Plaintiff stated “Not good. I feel the same.” (Id.) Defendant Hadnot asked Plaintiff if he wanted “program” - that is, to go outside, use the phone, watch TV, and/or take a shower. (Id.) Plaintiff answered, “No . . . I need to see the doctor!” (Id.)

         “Shortly thereafter (over a period of two hours), ” a medical team arrived, but Plaintiff was unable to stand up without falling. (Complaint, Attach. at 11.) Plaintiff then suffered another seizure and urinated while convulsing. (Id.) When Plaintiff regained consciousness, he heard Defendant Nurse Lopez say, “I’m not picking his ass up he urinated all over himself!” (Id.) Nurse John Doe 2 stated, “He can just lay there no way I’m picking him up we could get a sheet and drag him like a funky dead body.” (Id.) Defendant Lopez responded, “Just throw him down the stairs.” (Id.) Defendant Lopez and John Doe 2 began laughing. (Id.) Defendant Hadnot got frustrated and stated, “This is serious man!” (Id.) Defendant Hadnot and a “trustee” helped Plaintiff get up and start ...