Bowell v. Nguyen

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES BOWELL, Case No.: 3:20-cv-0616-JAH-AHG CDCR #H-04180, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILING TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C. § 1915(e)(2) E. NGUYEN; J. BURKE; R. ZANG-DO; 15 AND 28 U.S.C. § 1915A(b) WALTER NAHM; DR. MARTIN; T. 16 LUU; DR. G. CASIAN; DR. M. SANTOS; S. ROBERTS, M.D.; R.A. 17 BARENCHI, M.D.; MARCUS 18 POLLARD; L. SCHOBELOCK; G.F.D. SOUZA, M.D., 19 Defendants. 20 21 22 I. Procedural History 23 On March 30, 2020, James Bowell (“Plaintiff”), a state inmate currently incarcerated 24 at the Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, 25 and proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983. (See Comp., 26 ECF No. 1). In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) 27 pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 28 1 On May 5, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP and 2 DISMISSED his Complaint for failing to state a claim. (See May 5, 2020 Order, ECF No. 3 9 at 10-11.) Plaintiff was granted leave to file an amended complaint in order to correct 4 the deficiencies of his pleading identified in the Court’s Order. (See id. at 11.) On October 5 16, 2020, Plaintiff indicated to the Court that he had attempted to file an amended pleading 6 within the timeframe provided by the Court, but the Court did not receive his amended 7 pleading. Based upon Plaintiff’s representation, the Court permitted Plaintiff to file his 8 First Amended Complaint1 (“FAC”) on October 19, 2020. (See FAC, ECF No. 20.) 9 II. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 10 A. Standard of Review 11 As the Court previously informed Plaintiff, because Plaintiff is a prisoner and is 12 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C. 13 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 14 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 15 claim, or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 16 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 17 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 18 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 19 ensure that the targets of frivolous or malicious suits need not bear the expense of 20 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 21 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 25 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 26 27 1 Plaintiff names Ronald Zhang as a Defendant which appears to be a correction in the spelling of 28 Defendant “Zang-do” who was named in the original Complaint. 1 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 2 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 3 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain 4 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 5 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 7 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 8 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context- 9 specific task that requires the reviewing court to draw on its judicial experience and 10 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 11 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 12 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 13 B. Plaintiff’s Allegations2 14 Plaintiff’s factual allegations are often disjointed and difficult to follow. It appears 15 that Plaintiff was examined by Defendant Walter Nahm, a dermatologist, on September 27, 16 2016. (See FAC at 5.) Plaintiff alleges that Nahm “slash[ed] [his] left shoulder wide open 17 after a completed Mohs procedure removing a tiny piece of skin the size of a dime.” (Id.) 18 Nahm purportedly told his “male assistant to put some glue stitch over it” but Plaintiff 19 asked for it to be “stitch[ed] up.” (Id.) Nahm then told the correctional officers who 20 escorted Plaintiff to the appointment that Plaintiff’s “ready to go with no stitches [for a] 21 wide open wound.” (Id.) After the officers “looked perplexed” and in a “state of shock,” 22 Nahm decided to stitch up the cut. (Id.) 23 Nahm also “sprayed [Plaintiff’s] right lower eyelid” with liquid nitrogen to treat a 24 sty. (Id.) Plaintiff claims Nahm told him “you have a closed eyelid pore on the edge that 25 I can do nothing for, try some baby shampoo.” (Id.) 26 27 2 The Court will refer to the page numbers as they are imprinted by the court’s electronic case filing 28 system. 1 On May 17, 2019, Nahm “performed three biopsy procedures” on Plaintiff’s “left 2 arm elbow area, left shoulder chest area and right lower eyelid.” (Id. at 5.) Plaintiff alleges 3 that Nahm “goug[ed] out a tiny hole” in his eyelid which has not healed to date. (Id.) 4 Plaintiff claims Defendant Ronald Zhang documented in his file that Plaintiff 5 “refused follow-up treatment” with Nahm on March 14, 2017. (Id. at 7.) It appears that 6 Plaintiff was examined by Defendant J. Burke on July 12, 2019 who placed a request for 7 Plaintiff to be seen by an ophthalmologist and Burke allegedly failed to follow up with the 8 request. (See id. at 8.) 9 Defendant Tri Luu on October 23, 2019 examined Plaintiff’s “eyelid open wound” 10 but claims he “fail[ed] to expedite a serious medical need” for Plaintiff to be seen by an 11 “eyelid specialist not a dermatologist.” (Id.) 12 Defendant Gina Casian examined Plaintiff’s eyelid on November 25, 2019 and told 13 Plaintiff that Nahm had “terminat[ed]” him as a patient. (Id.) However, Plaintiff claims 14 that was not true because he had been examined by Nahm on October 15, 2019 and told 15 Nahm he refused to be treated by him. (See id.) 16 On February 11, 2020, after “seeing Ophthalmologist [Defendant] E. Nguyen,” 17 Plaintiff claims Defendant Gehaan F. D’Souza “requested urgent Mohs surgery for 18 [Plaintiff’s] eyelid.” (Id.) On February 25, 2020, Defendant M. Santos “attempt[ed] to 19 send [Plaintiff] back to [Nahm].” (Id.) 20 Plaintiff claims Defendants Steven Roberts and Ryan A. Barenchi are in “charge of 21 supervising medical requests submitted by doctors.” (Id.) Plaintiff alleges Roberts and 22 Barenchi are responsible for “injuries incurred [that is] caused by their malicious 23 misconduct management of CDCR hiring and contracting doctors medical services.” (Id.) 24 Plaintiff’s FAC does not contain a request for relief. (See id. at 11.) 25 C. 42 U.S.C. § 1983 26 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 27 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 28 1 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 2 two essential elements: (1) that a right secured by the Constitution or laws of the United 3 States was violated, and (2) that the alleged violation was committed by a person acting 4 under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 5 1030, 1035-36 (9th Cir. 2015). 6 D. Rule 8 7 As an initial matter, the Court finds, once again, that Plaintiff’s FAC fails to comply 8 with Rule 8. Rule 8 of the Federal Rules of Civil Procedure provides that in order to state 9 a claim for relief in a pleading it must contain “a short and plain statement of the grounds 10 for the court’s jurisdiction” and “a short and plain statement of the claim showing that the 11 pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). See McHenry v. Renne, 84 F.3d 12 1172, 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was 13 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso, United 14 States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) 15 (citing cases upholding Rule 8 dismissals where pleadings were “verbose,” “confusing,” 16 “distracting, ambiguous, and unintelligible,” “highly repetitious,” and comprised of 17 “incomprehensible rambling.”). 18 E. Waiver of Defendants 19 In the Court’s May 5, 2020 Order, the Court informed Plaintiff that his “Amended 20 Complaint must be complete by itself without reference to his original pleading. 21 Defendants not named and any claim not re-alleged in his Amended Complaint will be 22 considered waived.” See May 5, 2020 Order at 10 citing S.D. Cal. CivLR 15.1; Hal Roach 23 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 24 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 25 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 26 in an amended pleading may be “considered waived if not repled.”). 27 In his FAC, Plaintiff no longer names Martin, Pollard or Schobelock as Defendants. 28 1 See FAC at 1-3. Thus, all claims against these Defendants are deemed waived. 2 F. Eighth Amendment claims 3 Prison officials are liable only if they are deliberately indifferent to the prisoner’s 4 serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Here, it is, once 5 again, not clear whether Plaintiff has alleged sufficient facts to demonstrate that he had a 6 serious medical need. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) 7 (defining a “serious medical need” as one which the “failure to treat ... could result in 8 further significant injury or the ‘unnecessary and wanton infliction of pain.’”), overruled 9 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) 10 (citing Estelle, 429 U.S. at 104); Iqbal, 556 U.S. at 678 (“[A] complaint must contain 11 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 12 face.’”) (quoting Twombly, 550 U.S. at 570). The “existence of an injury that a reasonable 13 doctor or patient would find important and worthy of comment or treatment; the presence 14 of a medical condition that significantly affects an individual’s daily activities; or the 15 existence of chronic and substantial pain are examples of indications that a prisoner has a 16 ‘serious’ need for medical treatment.” McGuckin, 974 F.3d at 1059-60. 17 However, even assuming Plaintiff’s medical issues were “objectively serious” 18 medical conditions, nothing in his FAC supports a “reasonable inference that [any 19 individual] defendant” acted with deliberate indifference to his plight. Iqbal, 556 U.S. at 20 678. “In order to show deliberate indifference, an inmate must allege sufficient facts to 21 indicate that prison officials acted with a culpable state of mind.” Wilson v. Seiter, 501 22 U.S. 294, 302 (1991). 23 In his FAC, Plaintiff claims the “slashing of [his] left shoulder” by Nahm was 24 “medical malpractice gross negligence.” FAC at 5-6. However, despite Plaintiff’s claims 25 that Nahm “slashed” his shoulder, he also indicates that Nahm treated this cut. See id. 26 Plaintiff also claims that various doctors at RJD committed “gross negligent medical 27 malpractice.” Id. at 5-7. However, Plaintiff’s allegations appear to revolve around his 28 1 disagreement with their intention to send Plaintiff to Nahm for further treatment. Plaintiff 2 alleges that Defendant Burke placed a request for him to be seen by an ophthalmologist. 3 See id. at 8. Plaintiff alleges Defendant Luu “refused to properly document the 4 circumstances of Nahm’s medical malpractice.” Id. While Plaintiff’s claims are far from 5 clear, it appears Plaintiff disagrees with Defendant D’Souza referring him to a plastic 6 surgeon. See id. Plaintiff alleges that Defendant Santos “attempt[ed] to send [Plaintiff] 7 back to Walter Nahm” on February 25, 2020. Id. None of these allegations demonstrate 8 deliberate indifference to Plaintiff’s medical needs by any named Defendants. 9 Plaintiff describes this treatment by various medical personnel as “[r]otating prison 10 doctors’ gross negligent medical malpractice.” Id. at 5. Deliberate indifference to medical 11 needs must be substantial; inadequate treatment due to malpractice, or even gross 12 negligence, does not amount to a constitutional violation. Estelle, 429 U.S. at 106; Toguchi 13 v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal 14 standard.”) (citing Hallett v. Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. 15 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 16 To the extent Plaintiff alleges the Defendants acted negligently and disagreed with 17 Plaintiff’s opinion as to the course of treatment, a § 1983 claim cannot sound merely in 18 negligence or substandard medical care. Farmer v. Brennan, 511 U.S. 825, 835 (1994) 19 (holding that a mere negligent failure to protect an inmate from harm is not actionable 20 under § 1983); Toguchi, 391 F.3d at 1057 (“Mere negligence in diagnosing or treating a 21 medical condition, without more, does not violate a prisoner’s Eighth Amendment 22 rights.”), quoting McGuckin, 974 F.2d at 1059. “Deliberate indifference,” on the other 23 hand, “is a high legal standard,” and claims of medical malpractice, negligence or a 24 difference of opinion concerning the course of treatment are insufficient to establish a 25 constitutional deprivation. Toguchi, 391 F.3d at 1060. 26 Plaintiff has merely alleged Defendants committed medical malpractice and had 27 differences of opinion regarding his need for medical care. However, he has not alleged 28 1 or provided any specific factual allegations, that any of the named Defendants acted with 2 deliberate indifference to his plight by “knowing of and disregarding an excessive risk to 3 his health and safety.” Farmer, 511 U.S. at 837; Iqbal, 556 U.S. at 678. 4 Accordingly, the Court finds that Plaintiff has failed to state an Eighth Amendment 5 medical deliberate indifference claim against any of the named Defendants. 6 G. Respondeat Superior 7 Plaintiff seeks to hold Defendants Roberts and Barenchi liable because they are 8 purportedly “in charge of supervising medical requests submitted via doctors 9 accountability.” FAC at 8. He also alleges that his injuries occurred due to their “malicious 10 misconduct management of CDCR hiring and contracting doctors.” Id. at 9. Plaintiff also 11 seeks to hold Defendant Diaz liable as the CDCR’s “prison administrator of policies.” Id. 12 at 10. 13 However, Plaintiff fails to state a plausible Eighth Amendment claim for relief 14 against these Defendants because he does not include any “further factual enhancement” 15 to describe how, when, or whether these Defendants were personally aware that Plaintiff 16 had medical issues for which he sought treatment. See Iqbal, 556 U.S. at 678 (citing 17 Twombly, 550 U.S. at 557). 18 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. 19 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is 20 inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official 21 defendant, through the official’s own individual actions, has violated the Constitution.” 22 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los 23 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least 24 some degree of particularity overt acts which defendants engaged in” in order to state a 25 claim). “A plaintiff must allege facts, not simply conclusions, t[o] show that [each 26 defendant] was personally involved in the deprivation of his civil rights.” Barren v. 27 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks 28 1 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required 2 element of a § 1983 claim.”). 3 As currently pleaded, Plaintiff’s FAC offers no factual detail from which the Court 4 might reasonably infer a plausible Eighth Amendment claim on the part of Roberts, 5 Barenchi or Diaz. Iqbal, 556 U.S. at 678. In fact, Fed. R. Civ. P. 8 “demands more than an 6 unadorned, the-defendant-unlawfully-harmed-me accusation,” and in order “[t]o survive a 7 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 8 ‘state a claim for relief that is plausible on its face.’” Iqbal, 662 U.S. at 678 (quoting 9 Twombly, 550 U.S. at 555, 570). 10 Therefore, the Court dismisses Roberts, Barenchi and Diaz sua sponte based on 11 Plaintiff’s failure to state any claim against them. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 12 § 1915A(b)(1). 13 H. Equal Protection 14 Throughout Plaintiff’s FAC he alleges he has been denied equal protection of the 15 laws under the Fourteenth Amendment. The Equal Protection Clause requires that persons 16 similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 17 U.S. 432, 439; Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th 18 Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 19 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established in two 20 ways. The first method requires a plaintiff to show that the defendant has intentionally 21 discriminated against the plaintiff on the basis of his membership in a protected class. 22 Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 23 1071, 1082 (9th Cir. 2003); Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th 24 Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Under this theory 25 of equal protection, Plaintiff must allege that Defendants’ actions were a result of his 26 membership in a suspect class such as race, religion, or alienage. Thornton v. City of St. 27 Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). 28 1 Plaintiff does not allege that he is a member of any suspect class nor does he allege 2 that the actions of the Defendants were based on his membership in any suspect class. Thus, 3 Plaintiff may establish an equal protection claim only if he alleges facts sufficient to 4 plausibly show Defendants intentionally treated similarly situated inmates differently 5 without a rational basis for doing so. Engquist v. Oregon Department of Agriculture, 553 6 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San 7 Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Lazy Y Ranch Ltd. v. Behrens, 8 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 9 486 (9th Cir. 2008). To state an equal protection claim under this “class of one” theory, 10 however, Plaintiff must allege facts to plausibly show that: (1) he is a member of an 11 identifiable class; (2) he was intentionally treated differently from others similarly situated; 12 and (3) there is no rational basis for the difference in treatment. Nurre v. Whitehead, 580 13 F.3d 1087, 1098 (9th Cir. 2009) (citing Village of Willowbrook, 528 U.S. at 564). He must 14 further allege discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-240 15 (1976); Serrano, 345 F.3d at 1081-82; Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 16 1997). 17 Again, Plaintiff’s FAC is far from clear but he appears to allege that Defendant 18 Nahm was given his prison file which labels him as a sex offender. See FAC at 5. Plaintiff 19 claims this placed him at “risk of irreparable harm” but fails to identify the harm. Id. 20 Plaintiff pleads no facts to show that he was intentionally treated differently from other 21 inmates. Thus, his equal protection claim does not appear to arise from his “unique 22 treatment,” which is the theory upon which a “class of one” claim depends. Nurre, 580 23 F.3d at 1098. 24 As a result, Plaintiff’s Fourteenth Amendment equal protection claims are 25 dismissed sua sponte for failure to state a plausible equal protection claim. See 28 U.S.C. 26 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 27 /// 28 1 Leave to Amend 2 Plaintiff has already been provided a short and plain statement of his pleading 3 || deficiencies, as well as an opportunity to amend sufficient facts to support his claims to no 4 ||avail. Therefore, the Court finds further attempts to amend would be futile. See Gonzalez 5 ||v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (‘Futility of amendment 6 ||can, by itself, justify the denial of ... leave to amend.’”’) (quoting Bonin v. Calderon, 59 7 ||F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 8 || 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend 9 has subsequently failed to add the requisite particularity to its claims, [t]he district 10 |}court’s discretion to deny leave to amend is particularly broad.” (internal quotation marks 11 || omitted) (second alteration in original)). 12 ||IV. Conclusion and Order 13 Accordingly, the Court: 14 1) DISMISSES this civil action sua sponte without further leave to amend for 15 ||failure to state a claim upon which § 1983 relief can be pursuant to 28 U.S.C. 16 ||§ 1915(e)(2)(B) and § 1915A(b) and for failing to comply with FRCP 8; 17 2) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 18 }}28 U.S.C. § 1915(a)(3), and 19 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to 20 || close the file. 21 IT IS SO ORDERED. 22 23 || Dated: November 5, 2020 24 Hon. John A. Houston 25 Ynited States District Judge 26 27 28 11