United States District Court, C.D. California
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
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