Spatcher v. San Diego Sheriff Dept.

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 GREGORY LEON SPATCHER, Case No. 19-cv-01919-BAS-BLM

CDCR #BJ-9222,

12

ORDER:

Plaintiff,

13

vs. 1) GRANTING MOTION TO

14

PROCEED IN FORMA PAUPERIS

15 [ECF No. 2]

SAN DIEGO SHERIFF DEP’T; VISTA

16

DETENTION FACILITY; SAN DIEGO AND

17 CENTRAL JAIL; GEORGE BAILEY

DETENTION FACILITY; DEPUTY 2) DISMISSING COMPLAINT FOR

18

ESCOBAR; DEPUTY LAKE; VISTA FAILING TO STATE A CLAIM

19 DETENTION MEDICAL; CENTRAL PURSUANT TO 28 U.S.C. § 1915(e)(2)

JAIL DEPUTIES, & 28 U.S.C. § 1915A(b)

20

Defendants.

21

22 Plaintiff Gregory Leon Spatcher, currently incarcerated at the California Institution

23 for Men (“CIM”) in Chino, California, and proceeding pro se, has filed a civil rights

24 complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not prepay

25 the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead,

26 he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

27 (ECF No. 2).

28

1 I. Motion to Proceed IFP

2 All parties instituting any civil action, suit, or proceeding in a district court of the

3 United States, except an application for writ of habeas corpus, must pay a filing fee of

4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However,

7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in

8 “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016);

9 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their

10 action is ultimately dismissed, see 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281

11 F.3d 844, 847 (9th Cir. 2002).

12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a

13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the

14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

16 trust account statement, the Court assesses an initial payment of 20% of (a) the average

17 monthly deposits in the account for the past six months, or (b) the average monthly balance

18 in the account for the past six months, whichever is greater, unless the prisoner has no

19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding

21 month’s income, in any month in which his account exceeds $10, and forwards those

22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,

23 136 S. Ct. at 629.

24

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 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate

2 Statement Report. See ECF No. 2 at 3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;

3 Andrews, 398 F.3d at 1119. This statement shows that Plaintiff only had $0.07 in his

4 account at the time he filed this action. Because Plaintiff’s available balance was

5 insufficient to impose an initial partial filing fee at the time of filing, the Court will not

6 direct the Secretary of the CDCR, or his designee, to collect an initial partial filing fee at

7 this time. 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”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. §

11 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

12 solely on a “failure to pay . . . due to the lack of funds available to him when payment is

13 ordered”). However, the balance of the $350 total fee owed in this case must be collected

14 by the agency having custody of the prisoner and forwarded to the Clerk of the Court

15 pursuant to 28 U.S.C. § 1915(b)(2).

16 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

17 A. Standard of Review

18 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a

19 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

20 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it,

21 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who

22 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

23 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

25 the targets of frivolous or malicious suits need not bear the expense of responding.’”

26 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).

27 “The standard for determining whether a plaintiff has failed to state a claim upon

28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

2 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

3 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

5 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

6 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

7 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

9 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

10 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

11 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

12 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

13 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

14 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

15 B. Plaintiff’s Factual Allegations

16 Plaintiff was housed at the San Diego Central Jail (“SDCJ”) on May 24, 2019, where

17 he “caught the flu.” (Compl. at 4.) Plaintiff asked unnamed deputies to take him to

18 “medical,” but “they complained that they [were] short staf[fed] and they would not be

19 able to.” (Id.) Four days later, Plaintiff’s “sickness ha[d] gotten worse,” and he again

20 asked to be taken to “medical for treatment” but was again told that they could not because

21 they were “short staf[fed].” (Id.) On May 31, 2019, Plaintiff “felt so sick” he “hit the

22 button on the box” and told “the deputy that [he] can’t take it anymore and [he] was going

23 man-down.” (Id.) However, Plaintiff alleges the deputy refused to respond to his “man

24 down.” (Id.)

25 On June 4, 2019, a “nurse came in the module to check [Plaintiff’s] temp, blood

26 pressure,” and gave him “some medical attention.” (Id.) On June 10, 2019, Plaintiff “filed

27 a grievance about [his] mental health” and claimed that he had not received mental health

28 treatment for a month. (Id.) He alleges that he was “hearing voices” and he had “already

1 made [one] bad mistake by taking a [four] year prison term [due to him] being off [his]

2 meds.” (Id.) On June 23, 2019, Plaintiff “saw a psych doctor.” (Id.)

3 Plaintiff alleges that on multiple dates in the months of May, June, and July of 2019

4 he was “refused medical or mental health treatment” from either SDCJ or the George

5 Bailey Detention Facility (“GBDF”). (Id. at 5.) Plaintiff claims that he “took a [four] year

6 prison term after begging the jails and putting in request after request to see a psych doctor

7 to start [his] medication.” (Id.) Plaintiff alleges “it never happen[ed]” and “now [he is] in

8 prison for something [he] didn’t do.” (Id.)

9 On July 25, 2019, Plaintiff “asked Deputy Lake” to take him to “medical” because

10 he “had gotten [his] teeth pulled.” (Id. at 6.) However, while Deputy Lake told him that

11 he would take Plaintiff to medical, “he never did.” (Id.) The following day, Plaintiff asked

12 Deputy Lake again to take him to medical and Lake “sarcastically” told Plaintiff “oops”

13 that he had forgotten but he would take him. (Id.) However, Deputy Lake did not take

14 Plaintiff to medical. (See id.)

15 The following day, Plaintiff “asked Deputy Escobar” to take him to “medical” and

16 informed Deputy Escobar that his pain was a “10” using a scale of “1 to 10.” (Id.) Deputy

17 Escobar told Plaintiff “he had a lot going on at the moment” but he would take Plaintiff

18 “after night count.” (Id.) However, Deputy Escobar later refused to take Plaintiff to

19 “medical” and informed him that there was no point because “they are not going to do

20 anything but send you back anyways.” (Id.) Plaintiff told Deputy Escobar that “it’s

21 [expletive] up you are refusing me medical treatment” but Deputy Escobar “walked off.”

22 (Id.) Deputy Escobar purportedly contacted the “Dispatch Deputy” and told him to “tape”

23 Plaintiff’s door so he “could not go have chow.” (Id.) Plaintiff informed this Deputy that

24 he would “sue this jail,” and the Deputy opened Plaintiff’s cell door. (Id. at 7.) Plaintiff

25 was not provided breakfast that day and claims he “had to starve that day.” (Id.)

26 Plaintiff was “shipped to Chino State Prison” on July 29, 2019. (Id.) Plaintiff was

27 seen by a dentist on August 12, 2019, who asked him “how did [his] mouth get infected.”

28 (Id.) Plaintiff later discovered that he had a “broken wisdom tooth.” (Id.) Plaintiff alleges

1 that this was the result of “negligent dental work” while he was housed at GBDF on July

2 27, 2019. (Id.)

3 Plaintiff seeks unspecified injunctive relief, along with $25,000,000 in

4 compensatory damages, $20,000,000 in punitive damages, and $5,000,000 for “pain and

5 suffering.” (Id. at 9.)

6 C. 42 U.S.C. § 1983

7 “Section 1983 creates a private right of action against individuals who, acting under

8 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

9 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

10 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

11 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

12 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

13 secured by the Constitution and laws of the United States, and (2) that the deprivation was

14 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

15 F.3d 1128, 1138 (9th Cir. 2012).

16 D. Eighth Amendment claims

17 While Plaintiff alleges facts relating to his conditions of confinement while housed

18 in County of San Diego facilities, it appears from the factual allegations in his Complaint

19 that he is raising claims post sentencing and therefore, is not a pre-trial detainee during the

20 times referenced in his Complaint.

21 Only “deliberate indifference to serious medical needs of prisoners constitutes the

22 unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.”

23 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted).

24 “A determination of ‘deliberate indifference’ involves an examination of two elements:

25 (1) the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s

26 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled

27 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

28

1 “Because society does not expect that prisoners will have unqualified access to

2 health care, deliberate indifference to medical needs amounts to an Eighth Amendment

3 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992)

4 (citing Estelle, 429 U.S. at 103-104). “A ‘serious’ medical need exists if the failure to treat

5 a prisoner’s condition could result in further significant injury or the ‘unnecessary and

6 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 104).

7 “The existence of an injury that a reasonable doctor or patient would find important and

8 worthy of comment or treatment; the presence of a medical condition that significantly

9 affects an individual’s daily activities; or the existence of chronic and substantial pain are

10 examples of indications that a prisoner has a ‘serious’ need for medical treatment.” Id.

11 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990); Hunt v. Dental

12 Dept., 865 F.2d 198, 200-01 (9th Cir. 1989)).

13 Even though Plaintiff fails to provide substantial factual allegations, at this screening

14 stage of these proceedings, the Court will assume that Plaintiff’s allegation of having

15 suffering from the flu, as well has having unspecified mental health issues, sufficient to

16 show he suffered an objectively serious medical and mental health needs. See Compl. at 6;

17 McGuckin, 914 F.2d at 1059.

18 However, even assuming Plaintiff’s medicals needs were sufficiently serious, his

19 Complaint fails to include any further “factual content” to show that Defendants acted with

20 “deliberate indifference” to those needs. McGuckin, 914 F.2d at 1060; see also Jett v.

21 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678.

22 Plaintiff alleges that he had “caught the flu” and requested that Defendants take him

23 to be medically examined. (Compl. at 4.) However, other than claiming to have the flu,

24 he does not describe any of his symptoms that would alert any of the Defendants as to how

25 severe his illness should have been perceived.

26 To state an Eighth Amendment claim, Plaintiff must include “further factual

27 enhancement,” Iqbal, 556 U.S. at 678, which demonstrates a “purposeful act or failure to

28 respond to [his] pain or possible medical need,” and the “harm caused by [this]

1 indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 439

2 F.3d at 1096). Plaintiff never describes the ultimate harm he may have suffered by the

3 purported failure to treat his illness.

4 As to Plaintiff’s mental health care claims, he alleges that he was denied mental

5 health care for more than a month. (See Compl. at 4.) Plaintiff must allege facts sufficient

6 to show that each individual person he seeks to sue “kn[e]w of and disregard[ed] an

7 excessive risk to [his] health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994);

8 Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (providing liability may be imposed on

9 individual defendant under § 1983 only if plaintiff can show that defendant proximately

10 caused deprivation of a federally protected right). Here, Plaintiff fails to identify any

11 specific individual whom he claims is responsible for this alleged delay in receiving mental

12 health care services.

13 Plaintiff also alleges that was subjected to “negligent dental work” while housed at

14 GBDF. (Compl. at 7.) However, the alleged indifference to medical needs must also be

15 substantial; inadequate treatment due to malpractice, or even gross negligence, does not

16 amount to a constitutional violation. Estelle, 429 U.S. at 106; Wood, 900 F.2d at 1334.

17 According, Plaintiff’s Eighth Amendment claims are DISMISSED for failing to

18 state a claim upon which relief may be granted.

19 E. Municipal Liability

20 In addition, to the extent Plaintiff names the “San Diego Sheriff’s Department”

21 (“SDSD”), Vista Detention Facility (“VDF”), SDCJ, and GBDF as Defendants, he fails to

22 state a claim upon which § 1983 relief may be granted. Departments of municipal entities

23 are not “persons” subject to suit under § 1983; therefore, local law enforcement agencies,

24 like the SDSD and its detention facilities, are not proper parties. See Vance v. County of

25 Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“Naming a municipal department as

26 a defendant is not an appropriate means of pleading a § 1983 action against a

27 municipality.”) (citation omitted); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D.

28

1 Ill. 1993) (“Section 1983 imposes liability on any ‘person’ who violates someone’s

2 constitutional rights ‘under color of law.’ Cook County Jail is not a ‘person.’”).

3 “Persons” under § 1983 are state and local officials sued in their individual

4 capacities, private individuals and entities which act under color of state law, and/or the

5 local governmental entity itself. Vance, 928 F. Supp. at 995-96. The SDSD is a law

6 enforcement agency or department of the County of San Diego, but it is not a “person”

7 subject to suit under § 1983. See, e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th

8 Cir. 2005) (“[M]unicipal police departments and bureaus are generally not considered

9 ‘persons’ within the meaning of section 1983.”). Therefore, Plaintiff cannot pursue any §

10 1983 civil rights claims against the “San Diego Sheriff’s Department,” VDF, SDCJ, or

11 GBDF. See Boone v. Deutsche Bank Nat’l Tr. Co., No. 2:16-CV-1293-GEB-KJN-PS, 2017

12 WL 117966, at *3 (E.D. Cal. Jan. 12, 2017) (“Because the Solano County Sheriff’s

13 Department is not a ‘person’ within the meaning of Section 1983, plaintiffs cannot maintain

14 their claims against it under that statute as a matter of law.”).

15 To the extent Plaintiff may have intended to assert a claim against the County of San

16 Diego itself, his allegations are also insufficient. A municipal entity may be held liable

17 under § 1983 only if he alleges facts sufficient to plausibly show that he was deprived of a

18 constitutional right by individually identified employees who acted pursuant to the

19 municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S.

20 274, 280 (1977); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Villegas v.

21 Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). The County of San Diego

22 may not be held vicariously liable under § 1983 simply because one of its employees is

23 alleged to have acted wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403

24 (1997); Monell, 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because

25 it employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead,

26 the municipality may be held liable “when execution of a government’s policy or custom

27 . . . inflicts [a constitutional] injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v.

28 Humphries, 562 U.S. 29, 36 (2010).

1 Thus, the claims against the San Diego Sheriff Department, VDF, SDCJ, and GBDF

2 are DISMISSED for failing to state a claim upon which relief may be granted.

3 F. Leave to Amend

4 Accordingly, the Court finds Plaintiff’s Complaint fails to state a plausible claim

5 against any named Defendant, and that therefore, it is subject to sua sponte dismissal in its

6 entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d

7 at 1126-27; Rhodes, 621 F.3d at 1004.

8 Because he is proceeding pro se, however, the Court having now provided him with

9 “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity to

10 amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet,

11 963 F.2d 1258, 1261 (9th Cir. 1992)).

12 III. Conclusion and Order

13 For the reasons explained, the Court:

14 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

15 (ECF No. 2).

16 2. DIRECTS the Secretary of the CDCR, or his designee, to garnish the $350

17 filing fee owed in this case by collecting monthly payments from his account in an amount

18 equal to twenty percent (20%) of the preceding month’s income and forwarding them to

19 the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28

20 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE

21 NAME AND NUMBER ASSIGNED TO THIS ACTION.

22 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz,

23 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

24 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

25 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and

26 GRANTS him forty-five (45) days leave from the date of this Order in which to file an

27 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s

28 Amended Complaint must be complete by itself without reference to his original pleading.

1 ||Defendants not named and any claim not re-alleged in his Amended Complaint will be

2 ||considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

3 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

4 |/original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

5 dismissed with leave to amend which are not re-alleged in an amended pleading may be

6 || “considered waived if not repled”).

7 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

8 || will enter a final order dismissing this civil action based both on Plaintiff’s failure to state

9 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

10 1915A(b), and his failure to prosecute in compliance with a court order requiring

11 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

12 || not take advantage of the opportunity to fix his complaint, a district court may convert the

13 || dismissal of the complaint into dismissal of the entire action.”’).

14 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights

15 |}complaint form.

16 IT IS SO ORDERED.

17

18 || DATED: December 16, 2019

9 ( pict 4 (Hiphaa 6

20 United States District Judge

21

22

23

24

25

26

27

28

11