# Haag v. San Diego Sheriff Dep

> District Court, S.D. California · September 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10079614

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10079614

## How later opinions describe it (automated extraction)

- noting that claims dismissed with leave to amend which are not re-alleged in an 9 || amended pleading may be “considered waived if not repled.’’
- noting that screening pursuant to § 1915A “incorporates the familiar standard 11 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12 12(b)(6)”
- discussing 28 U.S.C. § 1915A(b)

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 PAUL DAVID HAAG, Case No.: 3:19-cv-1460-AJB-MSB
CDCR #BJ-0331,
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ORDER:
Plaintiff,
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vs. (1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS

15 PURSUANT TO 28 U.S.C. § 1915(a)
SAN DIEGO SHERIFF DEP’T; LVN [Doc. No. 2]; AND
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#6131; LVN #6222; LVN #6977; LVN
17 #7403, (2) DISMISSING COMPLAINT FOR
18 Defendants. FAILING TO STATE A CLAIM
PURSUANT TO
19 28 U.S.C. § 1915(e)(2)(B)(ii)
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25 Paul Haag (“Plaintiff”), a state inmate currently incarcerated at the California
26 Medical Facility located in Vacaville, California, and proceeding pro se, has filed a civil
27 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. See Doc. No. 1 at 1.
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1 Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the
2 time of filing; instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”)
3 pursuant to 28 U.S.C. § 1915(a) (Doc. No. 2).
4 I. Plaintiff’s IFP Motion
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 who is granted leave to
11 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
12 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
13 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.
14 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
15 2002).
16 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
17 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the
18 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
19 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
20 trust account statement, the Court assesses an initial payment of 20% of (a) the average
21 monthly deposits in the account for the past six months, or (b) the average monthly
22 balance in the account for the past six months, whichever is greater, unless the prisoner
23 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having
24 custody of the prisoner then collects subsequent payments, assessed at 20% of the
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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.
Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed
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1 preceding month’s income, in any month in which his account exceeds $10, and forwards
2 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);
3 Bruce, 136 S. Ct. at 629.
4 In support of his IFP motion, Plaintiff has submitted a certified copy of his trust
5 account statement, as well as a prison certificate, verified by an accounting officer,
6 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. See Doc. No. 2; Andrews,
7 398 F.3d at 1119. These statements show that Plaintiff had only an available balance of
8 $0.00 at the time of filing. Therefore, the Court does not assess an initial partial filing fee
9 at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be
10 prohibited from bringing a civil action or appealing a civil action or criminal judgment
11 for the reason that the prisoner has no assets and no means by which to pay the initial
12 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28
13 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case
14 based solely on a “failure to pay . . . due to the lack of funds available to him when
15 payment is ordered.”).
16 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP, declines to
17 “exact” an initial filing fee because his prison certificate shows he “has no means to pay
18 it,” Bruce, 136 S. Ct. at 629, and directs the Secretary for the CDCR, or their designee,
19 to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914
20 and forward them to the Clerk of the Court pursuant to the installment payment
21 provisions set forth in 28 U.S.C. § 1915(b)(1). See id.
22 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
23 A. Standard of Review
24 Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-
25 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
26 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
27 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
28 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
1 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
2 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
3 the targets of frivolous or malicious suits need not bear the expense of responding.’”
4 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
5 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
6 “The standard for determining whether a plaintiff has failed to state a claim upon
7 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
8 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
9 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
10 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
11 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
12 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
13 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
14 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
16 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
17 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
18 relief [is] . . . a context-specific task that requires the reviewing court to draw on its
19 judicial experience and common sense.” Id. The “mere possibility of misconduct” or
20 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
21 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
22 (9th Cir. 2009).
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1 B. Plaintiff’s Allegations
2 Plaintiff alleges that he was housed “in county jail2 for months.” (Compl. at 3.) At
3 the time Plaintiff was housed in the “county jail,” he claims to have a “broken [and]
4 dislocated hip.” (Id.) Plaintiff was “hurting 24 [hours] a day” but no pain medication
5 was given to him “except Tylenol.” (Id.) Plaintiff alleges that he “let it be known [he]
6 was hurting.” (Id.) However, he claims that unknown jail staff were “procrastinating” in
7 performing surgery on him. (Id.) As a result, Plaintiff alleges he “never got proper
8 medical treatment.” (Id.)
9 C. Improper Defendants & Municipal Liability
10 As an initial matter, the Court finds that to the extent Plaintiff names the San Diego
11 County Sheriff’s Department as a Defendant, his claims must be dismissed sua sponte
12 pursuant to both 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim upon
13 which § 1983 relief can be granted.
14 Local law enforcement departments, like the San Diego Sheriff’s Department,
15 municipal agencies, or subdivisions of that department or agency, are not proper
16 defendants under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996
17 (N.D. Cal. 1996) (“Naming a municipal department as a defendant is not an appropriate
18 means of pleading a § 1983 action against a municipality.”) (citation omitted); Powell v.
19 Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes
20 liability on any ‘person’ who violates someone’s constitutional rights ‘under color of
21 law.’ Cook County Jail is not a ‘person.’”).
22 While the County of San Diego itself may be considered a “person” and therefore,
23 a proper defendant under § 1983, see Monell v. Department of Social Services, 436 U.S.
24 658, 691 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988),
25 Plaintiff has not named the County as a Defendant. Moreover, as a municipality, the
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2 Plaintiff does not specify which county facility he was housed in sometime in March and April of
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1 County may be held liable under § 1983–but only where the Plaintiff alleges facts to
2 show that a constitutional deprivation was caused by the implementation or execution of
3 “a policy statement, ordinance, regulation, or decision officially adopted and
4 promulgated” by the County, or a “final decision maker” for the County. Monell, 436
5 U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997);
6 Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other words, “respondeat superior
7 and vicarious liability are not cognizable theories of recovery against a municipality.”
8 Miranda v. Clark County, Nevada, 279 F.3d 1102, 1109-10 (9th Cir. 2002). “Instead, a
9 Monell claim exists only where the alleged constitutional deprivation was inflicted in
10 ‘execution of a government’s policy or custom.’” Id. (quoting Monell, 436 U.S. at 694).
11 As currently pleaded, Plaintiff’s Complaint fails to state a claim under 28 U.S.C.
12 §§ 1915(e)(2) and 1915A(b) because he has failed to allege any facts which “might
13 plausibly suggest” that the County itself violated his constitutional rights. See Hernandez
14 v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading
15 standards to Monell claims); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (42
16 U.S.C. § 1983 provides for relief only against those who, through their personal
17 involvement as evidenced by affirmative acts, participation in another’s affirmative acts,
18 or failure to perform legally required duties, cause the deprivation of plaintiff’s
19 constitutionally protected rights).
20 D. Medical care claims
21 At the time the events in the Complaint occurred, it appears that Plaintiff may have
22 been a pretrial detainee. A pretrial detainee’s claim of the denial of the right to adequate
23 medical care is analyzed under an objective deliberate indifference standard. See Gordon
24 v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). The elements of such a claim
25 are: “(i) the defendant made an intentional decision with respect to the conditions under
26 which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk
27 of suffering serious harm; (iii) the defendant did not take reasonable available measures
28 to abate that risk, even though a reasonable official in the circumstances would have
1 appreciated the high degree of risk involved—making the consequences of the
2 defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused
3 the plaintiff’s injuries.” Id. at 1125. “With respect to the third element, the defendant’s
4 conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts
5 and circumstances of each particular case.’” Id. (quoting Castro v. City of Los Angeles,
6 833 F.3d 1060, 1071 (9th Cir. 2016)). A plaintiff must “prove more than negligence but
7 less than subjective intent—something akin to reckless disregard.” Id. (quoting Castro,
8 833 F.3d at 1071). The “mere lack of due care” is insufficient. Id. (internal quotation
9 omitted); see Hopper v. Cty. of Riverside, No. EDCV1801277JAKDFM, 2018 WL
10 6092563, at *4 (C.D. Cal. Nov. 20, 2018).
11 Here, Plaintiff’s allegations fall far short of stating a claim of inadequate medical
12 care and he fails to provide any adequate description of the individuals whom he claims
13 denied him adequate medical care. Plaintiff claims that unidentified jail medical
14 personnel were “procrastinating” by not providing him surgery and while they gave him
15 pain medication, he claimed it did not provide adequate pain relief. (Comp. at 3.)
16 However, a difference of opinion between a pretrial detainee and the doctors or other
17 trained medical personnel at the Jail as to the appropriate course or type of medical
18 attention he requires does not amount to deliberate indifference, see Snow v. McDaniel,
19 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
20 1989)), and any delay in providing an appropriate course of treatment does not by itself
21 show deliberate indifference, unless the delay is alleged have caused harm. See
22 McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1991), overruled on other grounds by
23 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Shapley v. Nevada
24 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Here, Plaintiff simply
25 offers no specific factual allegations about the interactions he had with jail medical staff.
26 He simply lists a number of nurses but provides no descriptions of these individuals or
27 factual detail regarding any specific interaction with jail medical personnel.
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1 Because Plaintiff’s inadequate medical care claims currently fails to meet any of
2 these pleading requirements, these claims must be dismissed sua sponte pursuant to 28
3 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).
4 E. Leave to Amend
5 A pro se litigant must be given leave to amend his pleading to state a claim unless
6 it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d
7 at 1130 (noting leave to amend should be granted when a complaint is dismissed under
8 28 U.S.C. § 1915(e) “if it appears at all possible that the plaintiff can correct the defect”).
9 Therefore, while the Court finds Plaintiff’s Complaint fails to state a claim upon which
10 relief can be granted, it will provide him a chance to fix the pleading deficiencies
11 discussed in this Order, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
12 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
13 III. Conclusion and Order
14 For all the reasons discussed, the Court:
15 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
16 (Doc. No. 2).
17 2. DIRECTS the Secretary for the CDCR, or their designee, to collect from
18 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly
19 payments from his account in an amount equal to twenty percent (20%) of the preceding
20 month’s income and forwarding those payments to the Clerk of the Court each time the
21 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL
22 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
23 ASSIGNED TO THIS ACTION.
24 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph
25 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
26 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
27 § 1983 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A;
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1 5. GRANTS Plaintiff forty-five (45) days leave to file an Amended Complaint
2 || which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned,
3 || however, that should he choose to file an Amended Complaint, it must be complete by
4 ||itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-
5 || alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v.
6 || Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
7 || pleading supersedes the original.’”’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
8 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
9 || amended pleading may be “considered waived if not repled.’’).
10 6. The Clerk of Court is directed to mail Plaintiff a court approved form civil
11 |/rights complaint.
12 IT IS SO ORDERED.
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14 || Dated: September 23, 2019 © ¢
Hon. Anthony J. attaglia
16 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10079614. Public record. Not legal advice.