Norvell v. Roberts

• Court: District Court, S.D. California
• Decided: May 11, 2020
• Docket: 3:20-cv-00512
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ANTHONY LEAVONE NORVELL, Case No.: 3:20-CV-0512 JLS (NLS) CDCR #AA-0214, 10 ORDER: (1) GRANTING MOTION TO Plaintiff, 11 PROCEED IN FORMA PAUPERIS; vs. (2) DENYING MOTION TO APPOINT 12 COUNSEL; AND (3) DISMISSING S. ROBERTS, M.D.; JUSTIN B. KING; 13 COMPLAINT PURSUANT TO MARCUS POLLARD, 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 14 Defendants. 15 (ECF Nos. 2, 6) 16 17 18 19 20 21 22 Plaintiff Anthony Leavone Norvell, currently incarcerated at Richard J. Donovan 23 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 24 rights action filed pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff seeks 25 to sue his treating physician at Alvarado Hospital, Dr. Justin King; RJD’s Chief Medical 26 Executive, Dr. D. Roberts; and Warden Marcus Pollard, alleging they all failed to provide 27 him adequate medical care for a hernia. See id. at 10‒16. 28 / / / 1 Plaintiff has not paid the filing fee required by 28 U.S.C. § 1914(a); instead, he has 2 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See 3 ECF No. 2. He has also submitted a “Motion to Appoint Counsel.” See ECF No. 6. 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 of 7 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 8 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 9 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 10 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 11 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 12 Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 13 2015), regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) 14 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 15 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 16 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 17 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 19 trust account statement, the Court assesses an initial payment of 20% of (a) the average 20 monthly deposits in the account for the past six months, or (b) the average monthly balance 21 in the account for the past six months, whichever is greater, unless the prisoner has no 22 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 23 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 24 month’s income, in any month in which his account exceeds $10, and forwards those 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 2 136 S. Ct. at 629. 3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate 4 trust account statement. See ECF No. 4. Plaintiff’s statement shows that he had no 5 available funds to his credit at the time of filing. Therefore, the Court GRANTS Plaintiff’s 6 Motion to Proceed IFP (ECF No. 2) and assesses no initial partial filing fee per 28 U.S.C. 7 § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 8 prohibited from bringing a civil action or appealing a civil action or criminal judgment for 9 the reason that the prisoner has no assets and no means by which to pay the initial partial 10 filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety- 11 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . 12 due to the lack of funds available to him when payment is ordered”). However, the entire 13 $350 balance of the filing fees due for this case must be collected by the California 14 Department of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the 15 Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 16 II. Motion for Appointment of Counsel 17 Plaintiff also requests that the Court appoint him counsel due to his indigence and 18 the complexity of the issues involved in this case. See ECF No. 6 at 2. 19 All documents filed pro se are liberally construed, and “a pro se complaint, however 20 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 21 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 22 U.S. 97, 106 (1976) (internal quotations omitted)). But there is no constitutional right to 23 counsel in a civil case, see Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); 24 Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); only “exceptional 25 circumstances” support such a discretionary appointment. Terrell v. Brewer, 935 F.3d 26 1015, 1017 (9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 27 Exceptional circumstances exist where there is cumulative showing of both a likelihood of 28 /// 1 success on the merits and a demonstrated inability of the pro se litigant to articulate his 2 claims in light of their legal complexity. Id. 3 As currently pled, Plaintiff’s Complaint demonstrates that while he may not be 4 formally trained in law, he nevertheless is fully capable of legibly articulating the facts and 5 circumstances relevant to his claims, which are typical and not legally “complex.” 6 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet 7 to show he is likely to succeed on the merits of the claims. 8 Therefore, the Court DENIES Plaintiff’s Motion for Appointment of Counsel (ECF 9 No. 6). 10 III. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 11 A. Legal Standard 12 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 13 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 14 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 15 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 16 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 17 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 18 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 19 targets of frivolous or malicious suits need not bear the expense of responding.’” 20 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 21 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 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 27 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 28 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 1 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 2 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 6 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 9 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the Court 11 may consider exhibits attached to his Complaint. See Fed. R. Civ. P. 10(c) (“A copy of a 12 written instrument that is an exhibit to a pleading is a part of the pleading for all 13 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 14 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 15 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be 16 considered” in ruling on a Rule 12(b)(6) motion to dismiss.)). 17 B. Plaintiff’s Factual Allegations 18 On May 23, 2019, Plaintiff suffered from “cramps [and] unbearable pain” in his 19 abdomen which was in the same location as his “abdominal hernia.” Compl. at 3. Plaintiff 20 “notified multiple housing officers [and] housing medical staff for [four] days” about the 21 pain he was experiencing and that he discovered blood in his stool. Id. Plaintiff also claims 22 that he was unable to eat, as well as having difficulty sleeping due to his “hernia giving 23 [him] extreme pain.” Id. Despite his complaints, Plaintiff alleges that he was refused 24 medical attention. See id. 25 Plaintiff went to “pill call” where his blood pressure was taken and determined to be 26 “high due to [his] abdominal hernia.” Id. Plaintiff claims that Ivory, a registered nurse, 27 “tried to deny [him] medical care” while other “nurses put [him] on a gurney travel kit 28 /// 1 [and] plac[ed] [Plaintiff] in the ambulance.” Id. Plaintiff was “sent to outside hospital 2 treatment” at Alvarado Hospital. Id. 3 Plaintiff met with Defendant King, a surgeon at Alvarado Hospital. Id. at 4. Plaintiff 4 explained to King about his “uncontrollable abdominal pain in [his] left side” and his 5 inability to eat or sleep due to “extreme measures of pain in [his] hernia area.” Id. Plaintiff 6 also informed King of the discovery of “blood in [his] stool.” Id. However, Plaintiff 7 contends King “refus[ed] to proceed with [Plaintiff’s] abdominal hernia surgery” due to 8 Plaintiff’s “obesity (morbid).” Id. King informed Plaintiff that he needed to lose fifty to 9 hundred pounds “in order to receive any type of hernia surgery.” Id. 10 Plaintiff seeks suspension of Defendants’ medical licenses, abdominal surgery, and 11 $3,700,000 in punitive damages. Id. at 7. 12 C. 42 U.S.C. § 1983 Supervisory Liability Claims 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 17 1035–36 (9th Cir. 2015). 18 Plaintiff names D. Roberts, RJD’s Chief Medical Executive, and Marcus Pollard, 19 RJD’s Warden as Defendants. Compl. at 1–2. Plaintiff identifies Roberts by his title but 20 does not mention Roberts again in the body of his pleading, and does not explain the role 21 he or she may have played in any decisions any named Defendant is alleged to have made 22 regarding his medical care or need for a second hernia surgery. “[A] defendant may not be 23 held liable under § 1983 merely because he had certain job responsibilities.” Hernandez v. 24 Aranas, No. 218CV00102JADBNW, 2020 WL 569347, at *4 (D. Nev. Feb. 4, 2020) 25 (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). As for Pollard, Plaintiff claims 26 27 28 1 that he requested to see Pollard on several occasions, but he does not allege that Pollard 2 was ever aware of his medical condition or if Pollard was aware that Plaintiff had tried to 3 contact him. See Compl. at 5. 4 In short, Plaintiff fails to include any “further factual enhancement” to show how, or 5 to what extent, Dr. Roberts or Warden Paramo may be held personally liable for any 6 constitutional injury. See Iqbal, 556 U.S. at 676–77; Jones v. Comm’ty Redev. Agency of 7 City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege 8 with at least some degree of particularity overt acts which defendants engaged in” in order 9 to state a claim). “Vicarious liability is inapplicable to . . . § 1983 suits, [and] a plaintiff 10 must plead that each Government-official defendant, through [his] own individual actions, 11 has violated the Constitution,” in order to plead a plausible claim for relief. Iqbal, 556 U.S. 12 at 676; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (noting supervisor 13 may be held liable under § 1983 only if there is “a sufficient causal connection between 14 the supervisor’s wrongful conduct and the constitutional violation”) (citations and internal 15 quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (holding that 16 when a named defendant holds a supervisorial position, the causal link between the 17 defendant and the claimed constitutional violation must be specifically alleged); Victoria 18 v. City of San Diego, 326 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) (“Liability under § 1983 19 arises only upon a showing of personal participation by the defendant.”). 20 Plaintiff’s Complaint is simply devoid of any factual allegations sufficient to show 21 that either Dr. Roberts or Warden Pollard “participated in or directed [Dr. King’s alleged] 22 violations or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 23 F.2d 1040, 1045 (9th Cir.1989); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); 24 accord Starr, 652 F.3d at 1207–08 (“A supervisor can be liable in his individual capacity 25 for his own culpable action or inaction in the training, supervision, or control of his 26 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that 27 showed a reckless or callous indifference to the rights of others.”). 28 /// 1 For these reasons, the Court dismisses Dr. Roberts and Warden Pollard as parties to 2 this action sua sponte based on Plaintiff’s failure to state a plausible claim for relief against 3 them pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. § 1915A(b)(1), (2). See 4 Lopez, 203 F.3d at 1126–27; Wilhelm, 680 F.3d at 1121. 5 D. Eighth Amendment Medical Care Claims 6 To state an Eighth Amendment inadequate medical care claim, Plaintiff must first 7 allege he suffered from or faced an objectively “serious medical need.” Jett v. Penner, 439 8 F.3d 1091, 1096 (9th Cir. 2006); Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th 9 Cir. 2016). “A medical need is serious when the failure to treat it could result in significant 10 injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096; see also 11 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by 12 WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). 13 At the screening stage of these proceedings, the Court will assume that Plaintiff’s 14 allegation of having suffered an injury grave enough to require medical attention is 15 sufficient to show he suffered an objectively serious medical need. See McGuckin, 914 16 F.2d at 1059. However, Plaintiff must also allege facts sufficient to demonstrate Dr. King 17 acted with “deliberate indifference” to his serious medical needs. See Erickson v. Pardus, 18 551 U.S. 89, 90 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[D]eliberate 19 indifference to serious medical needs of prisoners constitutes the unnecessary and wanton 20 infliction of pain . . . proscribed by the Eighth Amendment,” and includes “indifference . . . 21 manifested by prison doctors in their response to the prisoner’s needs.”)). “Deliberate 22 indifference is a high legal standard.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 23 2016) (citing Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)). Inadvertent failures 24 to provide adequate medical care, mere negligence or medical malpractice, delays in 25 providing care (without more), and differences of opinion over what medical treatment or 26 course of care is proper, are all insufficient to constitute an Eighth Amendment violation. 27 Gamble, 429 U.S. at 105–07; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989); Shapley 28 v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 1 Here, Plaintiff alleges that Dr. King refused to perform the hernia surgery until 2 Plaintiff lost “50–100 pounds” due to his “morbid” obesity. Compl. at 4. This amounts to 3 a difference of opinion as to the proper course of care and medical treatment. To state an 4 Eighth Amendment claim, Plaintiff must include “further factual enhancement,” Iqbal, 556 5 U.S. at 678, which demonstrates Defendant’s “purposeful act or failure to respond to [his] 6 pain or possible medical need,” and the “harm caused by [this] indifference.” Wilhelm, 7 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Defendant’s acts or omissions must entail 8 more than Plaintiff alleges in his Complaint—an isolated act of alleged negligence or lack 9 of due care. See Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and 10 quotation marks omitted). 11 Accordingly, the Court finds that Plaintiff’s Complaint fails to state an Eighth 12 Amendment inadequate medical care claim against Dr. King. Therefore, it is subject to 13 sua sponte dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 14 § 1915A(b)(1). 15 IV. Conclusion and Orders 16 Based on the foregoing, the Court: 17 1) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2). 18 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 19 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 20 payments from his account in an amount equal to twenty percent (20%) of the preceding 21 month’s income and forwarding those payments to the Clerk of the Court each time the 22 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 23 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 24 THIS ACTION; 25 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 26 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 27 4) DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 6). 28 /// 1 5) DISMISSES Plaintiff's Complaint sua sponte for failing to state a claim upon 2 || which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1). 3 6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 4 which to file an Amended Complaint which cures the deficiencies of pleading noted. 5 || Plaintiff's Amended Complaint must be complete by itself without reference to his original 6 || pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 7 || will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard 8 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 9 supersedes the original.”); Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) 10 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended 11 || pleading may be “considered waived if not repled.”’). 12 The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy 13 || of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiff's use and 14 || to assist him in complying with LR 8.2.a’s requirements. 15 IT IS SO ORDERED. 16 ||Dated: May 11, 2020 tt 17 pee Janis L. Sammartino 18 United States District Judge 19 20 21 22 23 24 25 26 27 28