Davis v. Posson

• Court: District Court, N.D. California
• Decided: June 29, 2022
• Docket: 5:22-cv-00820
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 GLENN DAVIS, 11 Case No. 22-cv-00820 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND; DENYING 13 MOTION FOR APPOINTMENT OF COUNSEL 14 STEVEN POSSON CME, et al.,

15 Defendants.

16 (Docket No. 9)

17 18 Plaintiff, a state prisoner, filed a civil action in Monterey County Superior Court 19 against several defendants, including Dr. S. Posson and Dr. M. Sweet at the Correctional 20 Training Facility (“CTF”) where Plaintiff is currently confined. Defendants Posson and 21 Sweet removed this action to this Court under 28 U.S.C. § 1441, and requested the 22 complaint be screened under 28 U.S.C. § 1915A(a). Dkt. No. 1. This matter was 23 reassigned to the Undersigned on February 23, 2022, after the parties declined magistrate 24 judge jurisdiction. Dkt. Nos. 4, 7, 6. Plaintiff has also filed a motion for appointment of 25 counsel. Dkt. No. 9. 26 /// 27 /// 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 Plaintiff claims that due to his medical history, which includes having Valley Fever 16 and being mobility impaired, he is “totally disabled, high risk.” Dkt. No. 1 at 14. Plaintiff 17 claims that CTF failed to protect him when he contracted COVID-19 in January 2021, by 18 housing inmates who tested positive for Covid-19 with non-tested inmates and those with 19 severe respiratory medical problems in the “Q-wing infirmary Out-Patient-Unit” (“OHU”). 20 Id. at 16-17. Plaintiff identifies four causes of action: (1) professional negligence and 21 medical malpractice, Dkt. No. 1 at 20-21; (2) “statutory negligence” under Government 22 Code § 845.6, id. at 22; (3) intentional infliction of emotional distress, id. at 23; and (4) 23 “general negligence - deliberate indifference,” id. at 24. He seeks damages. Id. at 9. 24 The Court first notes that Plaintiff’s causes of action, except for part of the fourth 25 claim as discussed below, see infra at 4, arise out of state law. Defendants correctly assert 26 that the Court has supplemental jurisdiction over state-law claims. Dkt. No. 1 at 3; 28 1 jurisdiction over all other claims that are so related to claims in the action within such 2 original jurisdiction that they form part of the same case or controversy under Article III of 3 the United States Constitution,’” and confers power to entertain supplemental jurisdiction 4 in mandatory terms. See Executive Software North America, Inc. v. United States District 5 Court, 24 F.3d 1545, 1555 (9th Cir. 1994) (quoting 28 U.S.C. § 1367(a)) (emphasis 6 added). Pendent jurisdiction nonetheless “is a doctrine of discretion, not of plaintiff's 7 rights,” id. at 172, and § 1367(c) codifies the district’s court’s discretion to decline 8 jurisdiction over pendent claims by considering and weighing at every stage of the 9 litigation, the values of judicial economy, convenience, fairness, and comity, see id. at 173. 10 Where the court has dismissed all federal claims on the merits, rather than for lack of 11 subject matter jurisdiction, it has discretion under § 1367(c) to adjudicate or to dismiss the 12 remaining state law claims. See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (court 13 may decline to exercise supplemental jurisdiction over related state-law claims under 14 subsection (c)(3) once it has dismissed all claims over which it has original jurisdiction.) 15 Defendants removed this action to this Court based on Plaintiff’s reference to the 16 Americans with Disability Act of 1990 (“ADA”) and the Eighth Amendment. Id. at 2, 11, 17 18. However, the complaint fails to state sufficient facts to support a claim under the ADA 18 or the Eighth Amendment. 19 Title II of the ADA, 42 U.S.C. § 12101 et seq., provides that “no qualified 20 individual with a disability shall, by reason of such disability, be excluded from 21 participation in or be denied the benefits of the services, programs, or activities of a public 22 entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II 23 protects “a qualified individual with a disability.” 42 U.S.C. § 12132. In the context of the 24 ADA, the term “disability” means: “(A) a physical or mental impairment that substantially 25 limits one or more of the major life activities of the person; (B) having a record of such an 26 impairment; or (C) being regarded as having such an impairment.” Id. § 12102(1). For 1 oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, 2 lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, 3 communicating, and working.” 42 U.S.C. § 12102(2)(A). Even if Plaintiff has a disability 4 that qualifies for protection under the ADA, there is no allegation that he was excluded 5 from or denied the benefits of any service, program, or activity of the prison. 6 With respect to the Eighth Amendment, only Plaintiff’s fourth cause of action, 7 liberally construed, implicates this Amendment as he alleges that Defendants were not 8 only negligent but also deliberately indifferent. See supra at 2. However, negligence, 9 even gross negligence, is not cognizable under § 1983 and is only viable under state law. 10 See Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994); Wood v. Housewright, 900 11 F.2d 1332, 1334 (9th Cir. 1990) (gross negligence insufficient to state claim for denial of 12 medical needs to prisoner). 13 On the other hand, the treatment a prisoner receives in prison and the conditions 14 under which he is confined are subject to scrutiny under the Eighth Amendment. See 15 Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment imposes duties on 16 these officials, who must provide all prisoners with the basic necessities of life such as 17 food, clothing, shelter, sanitation, medical care and personal safety. See Farmer, 511 U.S. 18 at 832; DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200 19 (1989). A prison official violates the Eighth Amendment when two requirements are met: 20 (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer v. Brennan, 21 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the 22 prison official possesses a sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. 23 at 297). A prison official is deliberately indifferent if he or she knows that a prisoner faces 24 a substantial risk of serious harm and disregards that risk by failing to take reasonable 25 steps to abate it. Farmer, 511 U.S. at 837. The prison official must not only “be aware of 26 facts from which the inference could be drawn that a substantial risk of serious harm 1 of the risk, but did not actually know, the official has not violated the Eighth Amendment, 2 no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 3 2002). 4 Plaintiff’s allegations are insufficient to state an Eighth Amendment claim. Even if 5 the deprivation to Plaintiff was objectively and sufficiently serious, there is no allegation in 6 the complaint that any named Defendant knew that Plaintiff faced a substantial risk of 7 serious harm and disregarded that risk by failing to take reasonable steps to abate it. 8 Although Plaintiff alleges that he submitted a healthcare grievance addressed to 9 Defendants Posson and Sweet complaining of the intermingling of infected inmates with 10 other inmates in the OHU, there is no allegation that these Defendants were actually aware 11 that Plaintiff was a “high risk” patient and yet failed to take reasonable steps to abate the 12 risk to his health and safety. The fact that they should have known but did not may 13 establish negligence on their part, but not deliberate indifference. 14 Plaintiff shall be granted leave to file an amended complaint to allege specific facts 15 to state claims under the ADA and Eighth Amendment. In preparing an amended 16 complaint, Plaintiff should keep the following legal standards in mind. Liability may be 17 imposed on an individual defendant under § 1983 only if Plaintiff can show that the 18 defendant proximately caused the deprivation of a federally protected right. See Leer v. 19 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 20 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the 21 meaning of section 1983 if he does an affirmative act, participates in another’s affirmative 22 act or omits to perform an act which he is legally required to do, that causes the 23 deprivation of which the plaintiff complains. See Leer, 844 F.2d at 633. 24 In the alternative, Plaintiff may opt to strike the federal claims from the complaint 25 and proceed solely on the state law claims set forth in the complaint, in which case the 26 Court will decline to exercise supplemental jurisdiction and remand the matter back to the 1 264 F.3d at 826. 2 C. Motion for Appointment of Counsel 3 Plaintiff requests appointment of counsel due to a scheduled neck surgery and 4 additional operations with extensive recovery time. Dkt. No. 9 at 2. There is no 5 constitutional right to counsel in a civil case unless an indigent litigant may lose his 6 physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 7 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional 8 right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 9 154 F.3d 952 (9th Cir. 1998) (en banc). The decision to request counsel to represent an 10 indigent litigant under § 1915 is within “the sound discretion of the trial court and is 11 granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th 12 Cir. 1984). Plaintiff’s grounds for appointment of counsel based on medical procedures 13 does not amount to exceptional circumstances. Accordingly, the motion is DENIED. See 14 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 15 113 F.3d at 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 16 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). This denial is without 17 prejudice to the Court’s sua sponte appointment of counsel at a future date should the 18 circumstances of this case warrant such appointment. 19 20 CONCLUSION 21 For the reasons state above, the Court orders as follows: 22 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 23 (28) days from the date this order is filed, Plaintiff shall file an amended complaint using 24 the court’s form complaint to correct the deficiencies described above. The amended 25 complaint must include the caption and civil case number used in this order, i.e., Case No. 26 C 22-cv-00820 BLF (PR), and the words “AMENDED COMPLAINT” on the first page. 1 || Plaintiff is reminded that the amended complaint supersedes the original, and Plaintiff may 2 || not make references to the original complaint. Claims not included in the amended 3 || complaint are no longer claims and defendants not named in an amended complaint are no 4 || longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). 5 2. In the alternative, Plaintiff may file notice in the same time provided that he 6 || wishes to strike the ADA and Eighth Amendment claims from the complaint and have this 7 || matter remanded back to state superior court to adjudicate the remaining state law claims. 8 3. Failure to respond in accordance with this order by filing an amended 9 || complaint in the time provided will result in the dismissal of the ADA and Eighth 10 || Amendment claims for failure to state a claim without further notice to Plaintiff. The 11 || Court will then remand the matter back to state superior court to adjudicate the «= 12 || remaining state claims. E B IT IS SO ORDERED. 14 Dated: — June 29, 2022 BETH LABSON FREEMAN 15 United States District Judge 16

Oo Z 18 19 20 21 22 23 24 25 Order of Dismissal with Leave to Amend; Denying M. For Appt. of Counsel PRO-SE\BLF\CR.22\00820Davis_dwlta&atty 26 27