Keavney v. County of San Diego

• Court: District Court, S.D. California
• Decided: May 27, 2020
• Docket: 3:19-cv-01947
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL RICHARD KEAVNEY , Case No.: 3:19-cv-01947-AJB-BGS Booking #17104761, 12 ORDER: Plaintiff, 13 v. (1) GRANTING PLAINTIFF’S 14 MOTION TO PROCEED IN FORMA COUNTY OF SAN DIEGO; DR. EMAD 15 PAUPERIS [ECF No. 3]; AND BISHAY; DR. KASEY CONKLIN,

16 Defendants. (2) SUA SPONTE DISMISSING 17 COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 18 28 U.S.C. § 1915(e)(2) AND 19 § 1915A

20 Michael Richard Keavney (“Plaintiff”), while incarcerated at the San Diego Central 21 Jail (“SDCJ”) and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 22 1983. See Compl., ECF No. 1. Plaintiff alleges the County of San Diego and two Tri‒City 23 Medical Center doctors violated his constitutional rights by ignoring his pleas for medical 24 attention in December 2018. Id. at 1‒5. He seeks $1 million in compensatory and punitive 25 damages. Id. at 7. Plaintiff has not prepaid the $400 civil and administrative filing fee 26 required by 28 U.S.C. § 1914(a); instead, while incarcerated at the San Diego County 27 1 Sheriff’s Department Vista Detention Facility (“VDF”)1, he filed a Motion to Proceed In 2 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1). See ECF No. 3. 3 4 I. Motion to Proceed IFP 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee. See 7 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire 8 fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See 9 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a 10 prisoner and he is granted leave to proceed IFP, he remains obligated to pay the full entire 11 fee in “increments,” Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless 12 of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. 13 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 14 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), 15 prisoners seeking leave to proceed IFP must submit a “certified copy of the trust fund 16 account statement (or institutional equivalent) for the . . . six-month period immediately 17 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 18 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 19 1 Although he filed his Complaint while detained at SDCJ, according to the San Diego 20 County Sheriff’s Department’s website, Plaintiff is currently in custody at VDF. See 21 https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=zRQsIHvWIOkylpP4ARqdZiQY VorV1xdJ7ApeWLojNrs%3d (last accessed May 21, 2020). The Court may take judicial 22 notice of public records available on online inmate locators. See United States v. Basher, 23 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator available to the public); see also Foley v. Martz, No. 3:18-cv-02001-CAB-AGS, 24 2018 WL 5111998, at *1 (S.D. Cal. Oct. 19, 2018) (taking judicial notice of CDCR’s 25 inmate locator); Graham v. Los Angeles Cnty., No. 2:18-cv-01126-PA (GJS), 2018 WL 6137155, at *2 (C.D. Cal. May 4, 2018) (taking judicial notice pursuant to Federal Rule of 26 Evidence 201 of information regarding the status of inmate via the Los Angeles County 27 Sheriff’s Department’s website and its inmate locator function). 1 an initial payment of 20% of (a) the average monthly deposits in the account for the past 2 six months, or (b) the average monthly balance in the account for the past six months, 3 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 4 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects 5 subsequent payments, assessed at 20% of the preceding month’s income, in any month in 6 which the prisoner’s account exceeds $10, and forwards those payments to the Court until 7 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 8 In support of his IFP Motion, Plaintiff submitted a certified prison certificate issued 9 by VDF, which attests as to his trust account activity pursuant to 28 U.S.C. § 1915(a)(2) 10 and S.D. Cal. CivLR 3.2. Andrews, 398 F.3d at 1119. Plaintiff’s trust account activity 11 shows that Plaintiff carried an average monthly balance of $4.53, had average monthly 12 deposits of $294.34 to his account over the 6-month period immediately preceding the 13 filing of his Motion, and had an available balance of $27.17 on the books at the time of 14 filing. See ECF No. 3 at 4. Thus, the Court GRANTS Plaintiff’s Motion to Proceed IFP 15 (ECF No. 3) and assesses his initial partial filing fee to be $58.89 pursuant to 28 U.S.C. 16 § 1915(b)(1). 17 However, the Court will direct the Watch Commander of VDF, or his designee, to 18 collect this initial fee only if sufficient funds are available in Plaintiff’s account at the time 19 this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 20 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 21 judgment for the reason that the prisoner has no assets and no means by which to pay the 22 initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 23 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP 24 case based solely on a “failure to pay ... due to the lack of funds available to him when 25 payment is ordered.”). 26 The Watch Commander at VDF is directed to collect the remaining balance of the 27 $350 total fee owed in this case as mandated by 28 U.S.C. § 1914 and forward it to the 1 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 2 § 1915(b)(1). 3 II. Initial Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A 4 A. Standard of Review 5 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 6 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 7 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 8 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 9 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. 10 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); 11 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 12 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or 13 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 14 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 15 680, 681 (7th Cir. 2012)). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 19 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 20 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain 23 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 24 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context- 1 specific task that requires the reviewing court to draw on its judicial experience and 2 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 3 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 4 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 B. Plaintiff’s Allegations 6 Plaintiff seeks damages against the County of San Diego and two doctors from Tri- 7 City Medical Center for incidents that occurred while he was incarcerated at SDCJ. See 8 Compl., ECF No. 1 at 2‒3. On or about December 10, 2018, Plaintiff alleges he complained 9 to SDCJ deputies and medical staff about severe pain, stomach cramps, diarrhea, and lack 10 of appetite. Id. at 3. Plaintiff claims his pleas for medical attention were ignored for nearly 11 two weeks until a licensed vocational nurse at SDCJ saw that Plaintiff needed help. Id. at 12 3‒4. On or about December 22, 2018, Plaintiff claims the licensed vocational nurse referred 13 him to a jail physician who then sent Plaintiff “straight to the E.R. at Tri-City Medical 14 Center.” Id. at 4. Plaintiff claims Defendants “denied and delayed” him from receiving 15 proper medical care, which eventually caused him to suffer a severe infection. Id. at 5. 16 Plaintiff claims the two doctors who treated him at Tri-City Medical Center, Dr. 17 Kasey Conklin and Dr. Emad Bishay, both misdiagnosed him. Id. at 5. Plaintiff also alleges 18 both doctors failed to test him for communicable diseases until he was discharged from 19 Tri-City Medical Center, after which, Plaintiff “was told he was suffering from 20 Shigellosis.” Id. at 5. 21 C. 42 U.S.C. § 1983 22 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 23 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 24 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 25 two essential elements: (1) that a right secured by the Constitution or laws of the United 26 States was violated, and (2) that the alleged violation was committed by a person acting 27 under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1 1030, 1035-36 (9th Cir. 2015). 2 D. Discussion 3 To the extent Plaintiff seeks to challenge the adequacy of his medical care while he 4 was in pretrial custody, a claim brought under the Fourteenth Amendment “must be 5 evaluated under an objective deliberate indifference standard.”2 Gordon v. Cty. of Orange, 6 888 F.3d 1118, 1124-25 (9th Cir. 2018) (citing Castro, 833 F.3d at 1070); see also 7 Nishimoto v. Cty. of San Diego, No. 3:16-CV-01974-BEN-JMA, 2018 WL 4297004, at 8 *3–4 (S.D. Cal. Sept. 10, 2018). “[T]he elements of a pretrial detainee’s medical care claim 9 against an individual defendant under the due process clause of the Fourteenth Amendment 10 are: (i) the defendant made an intentional decision with respect to the conditions under 11 which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of 12 suffering serious harm; (iii) the defendant did not take reasonable available measures to 13 abate that risk, even though a reasonable official in the circumstances would have 14 appreciated the high degree of risk involved—making the consequences of the defendant’s 15 conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's 16 injuries. “With respect to the third element, the defendant’s conduct must be objectively 17 unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each 18 19 2 The Court presumes, for purposes of screening only, that Plaintiff was a pretrial detainee 20 at SDCJ from December 10, 2018 to December 22, 2018, when he alleges to have been 21 denied adequate medical care, and that therefore his claims arise under the Fourteenth Amendment rather than the Eighth. See Castro v. County of Los Angeles, 833 F.3d 1060, 22 1067-68 (9th Cir. 2016) (“Inmates who sue prison officials for injuries suffered while in 23 custody may do so under the Eighth Amendment’s Cruel and Unusual Punishment Clause, or if not yet convicted, under the Fourteenth Amendment’s Due Process Clause.”) (citing 24 Bell v. Wolfish, 441 U.S. 520, 535 (1979)). “Under both clauses, the plaintiff must show 25 that the … officials acted with ‘deliberate indifference.’” Id. at 1068. Plaintiff is cautioned, however, that “the sua sponte screening and dismissal procedure is cumulative of, and not 26 a substitute for, any subsequent Rule 12(b)(6) motion that [any individual defendant] may 27 choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 1 particular case.’” Gordon, 888 F.3d at 1125 (quoting Kingsley v. Hendrickson, __ U.S. __, 2 135 S. Ct. 2466, 2473 (2015)). 3 First, Plaintiff’s Fourteenth Amendment claim against the County of San Diego itself 4 is insufficient. A municipal entity may be held liable under § 1983 only if a plaintiff alleges 5 facts sufficient to plausibly show that he was deprived of a constitutional right by 6 individually identified employees who acted pursuant to the municipality’s policy or 7 custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell 8 v. Dept. of Social Services, 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival 9 Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The County of San Diego may not be held 10 vicariously liable under § 1983 simply because one of its employees is alleged to have 11 acted wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997); Monell, 12 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because it employs a 13 tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, the 14 municipality may be held liable “when execution of a government’s policy or custom ... 15 inflicts [a constitutional] injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v. 16 Humphries, 562 U.S. 29, 36 (2010). Here, Plaintiff’s Complaint fails to allege that any staff 17 at SDCJ or the contracted doctors at Tri-City Medical Center were acting pursuant to any 18 county policy or custom. Therefore, Plaintiff fails to state a claim upon which relief may 19 be granted pursuant to § 1983 regarding the County of San Diego. 20 Second, Plaintiff does not name either Tri-City Medical Center doctor as a 21 Defendant with respect to his Fourteenth Amendment claim for inadequate medical care, 22 and even if Plaintiff intended to hold them liable for violating his constitutional rights, he 23 fails to claim that either doctor acted with deliberate indifference to a substantial risk that 24 he would suffer serious harm. See, e.g., Castro, 833 F.3d at 1071. 25 Plaintiff instead asserts two California state law claims against Dr. Bishay and Dr. 26 Conklin for medical malpractice and negligence. See Compl., ECF No. 1 at 5. Plaintiff also 27 appears to assert two state law claims against the County of San Diego for reckless 1 endangerment and negligence. See Compl., ECF No. 1 at 4. “In any civil action of which 2 the district courts have original jurisdiction, the district courts shall have supplemental 3 jurisdiction over all other claims that are so related to claims in the action within such 4 original jurisdiction that they form part of the same case or controversy under Article III 5 of the United States Constitution.” 28 U.S.C. § 1367(a). However, “once judicial power 6 exists under § 1367(a), retention of supplemental jurisdiction over state law claims under 7 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). 8 “The district courts may decline to exercise supplemental jurisdiction over a claim 9 under subsection (a) if— (3) the district court has dismissed all claims over which it has 10 original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that “if 11 the federal claims are dismissed before trial, ... the state claims should be dismissed as 12 well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). As previously 13 mentioned, the Court has found Plaintiff’s Complaint fails to state a plausible claim for 14 relief pursuant to 42 U.S.C. § 1983. Therefore, in the absence of any viable federal claim 15 upon which § 1983 relief may be granted, the Court exercises its discretion and 16 DISMISSES all Plaintiff’s supplemental state law claims without prejudice pursuant to 28 17 U.S.C. § 1367(c)(3). Id. 18 For all these reasons, the Court DISMISSES Plaintiff’s Complaint in its entirety for 19 failing to state a claim upon which § 1983 relief may be granted pursuant to 28 U.S.C. § 20 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 21 F.3d at 1121. 22 / / / 23 III. Conclusion and Order 24 Based on the foregoing, the Court: 25 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 26 (ECF No. 3). 27 2. ORDERS the Watch Commander of VDF, or his designee, to collect from 1 Plaintiff’s trust account the $58.89 initial filing fee assessed, if those funds are available 2 at the time this Order is executed, and to forward whatever balance remains of the full $350 3 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 4 month’s income to the Clerk of the Court each time the amount in Plaintiff’s account 5 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY 6 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 7 3. DIRECTS the Clerk of the Court is directed to serve a copy of this Order on 8 the Watch Commander, San Diego County Sheriff’s Department, Vista Detention Facility, 9 325 S. Melrose Drive, Vista, California 92081. 10 4. DISMISSES Plaintiff’s Complaint against the County of Diego, Dr. Emad 11 Bishay, and Dr. Kasey Conklin for failing to state a claim pursuant to 28 U.S.C. 12 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 13 5. GRANTS Plaintiff 45 days leave from the date of this Order in which to file 14 an Amended Complaint which cures the deficiencies of pleading noted. Plaintiff’s 15 Amended Complaint must be complete by itself without reference to his original pleading. 16 Defendants not named and any claim not re-alleged in his Amended Complaint will be 17 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 18 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 19 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 20 dismissed with leave to amend which are not re-alleged in an amended pleading may be 21 “considered waived if not repled.”). 22 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 23 a final Order dismissing this civil action based both on his failure to state a claim upon 24 which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and § 1915A(b) and his 25 failure to prosecute in compliance with a court order requiring amendment. See Lira v. 26 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 27 the opportunity to fix his complaint, a district court may convert the dismissal of the 1 ||complaint into dismissal of the entire action.’’). 2 3 |} IT IS SO ORDERED. 4 Dated: May 26, 2020

6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3:19-cv-01947-AJB-BGS