Bowell v. Nguyen

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JAMES BOWELL, Case No.: 3:20-cv-0616-JAH-AHG

CDCR #H-04180,

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ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

vs. PAUPERIS [ECF No. 2]; (2)

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DISMISSING COMPLAINT FOR

E. NGUYEN; J. BURKE; R. ZANG-DO;

15 FAILING TO STATE A CLAIM

WALTER NAHM; DR. MARTIN; T.

PURSUANT TO 28 U.S.C. § 1915(e)(2)

16 LUU; DR. G. CASIAN; DR. M.

AND 28 U.S.C. § 1915A(b); AND (3)

SANTOS; S. ROBERTS, M.D.; R.A.

17 DENYING DUPLICATIVE MOTION

BARENCHI, M.D.; MARCUS

TO PROCEED IN FORMA

18 POLLARD; L. SCHOBELOCK; G.F.D.

PAUPERIS AS MOOT

SOUZA, M.D.,

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Defendants.

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22 James Bowell (“Plaintiff”), a state inmate currently incarcerated at the Richard J.

23 Donovan Correctional Facility (“RJD”) located in San Diego, California, and proceeding

24 pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. (See Comp., ECF No.

25 1). In addition, Plaintiff has filed two Motions to Proceed In Forma Pauperis (“IFP”)

26 pursuant to 28 U.S.C. § 1915(a). (ECF Nos. 2, 8.)

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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. See

4 28 U.S.C. § 1914(a). An action may proceed despite the plaintiff’s failure to prepay the

5 entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See

6 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, if the plaintiff is a

7 prisoner and is granted leave to proceed IFP, he nevertheless remains obligated to pay the

8 entire fee in installments, regardless of whether his action is ultimately dismissed. See 28

9 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

10 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act

11 (“PLRA”), a prisoner seeking leave to proceed IFP must also submit a “certified copy of

12 the trust fund account statement (or institutional equivalent) for . . . the six-month period

13 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

14 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the

15 Court assesses an initial payment of 20% of (a) the average monthly deposits in the

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

17 past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.

18 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then

19 collects subsequent payments, assessed at 20% of the preceding month’s income, in any

20 month in which the prisoner’s account exceeds $10, and forwards them to the Court until

21 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

22 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate

23 trust account statement. (ECF No. 4.) Plaintiff’s statement shows that he had no

24 available funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) (providing

25 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing

26 a civil action or criminal judgment for the reason that the prisoner has no assets and no

27 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding

28 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s

1 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him

2 when payment is ordered.”).

3 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

4 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350

5 balance of the filing fees due for this case must be collected by the California Department

6 of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court

7 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

8 Plaintiff’s duplicative Motion to Proceed IFP (ECF No. 8) is DENIED without prejudice

9 as moot.

10 II. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

11 A. Standard of Review

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

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

15 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

16 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28

17 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

18 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

19 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

20 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

21 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

22 680, 681 (7th Cir. 2012)).

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

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

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

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

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

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

1 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to

2 “contain sufficient factual matter, accepted as true, to state a claim to relief that is

3 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

4 marks omitted).

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

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

7 Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context-

8 specific task that requires the reviewing court to draw on its judicial experience and

9 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-

10 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.;

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

12 B. Plaintiff’s Allegations1

13 On September 17, 2016, Defendant Walter Nahm, a dermatologist, “performed a

14 Mohs surgery [on Plaintiff] by removing a time piece of skin the size of a dime.”

15 (Compl. at 4.) Dr. Nahm “wanted to use a glue stitch that would leave a hole” but

16 Plaintiff “told Dr. Nahm to just stitch it up.” (Id.) Plaintiff claims that “in a fit of rage

17 Nahm pulled out his scalpel very fast, slashing [Plaintiff’s] left shoulder.” (Id.) Plaintiff

18 alleges Nahm told Correctional Officers Davis and Martinez that Plaintiff was “ready to

19 go” despite having an “open wound” and “no stitches.” (Id.) Plaintiff claims that he

20 “calmly in a humble tone psychologically brought [Nahm’s] mind under logical control

21 as Nahm decided” to suture the cut. (Id.) Plaintiff also claims that Nahm treated a sty on

22 his eye with liquid nitrogen. (See id.)

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1 The Court will refer to the page numbers as they are imprinted by the court’s electronic case filing

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1 On May 17, 2019, Plaintiff alleges that as a “form of retaliation,” Nahm’s

2 assistants “performed a biopsy on three locations on [Plaintiff’s] left arm/shoulder and

3 right lower eyelid.” (Id. at 5.) Plaintiff claims they injected a chemical into his eyelid

4 “gouging out a tiny hole” which “just gets bigger, infected,” and “swollen.” (Id.)

5 Plaintiff alleges he sought medical assistance for his “open wound” for

6 “approximately one year with no help, rotating prison doctors attempting to force [him]

7 back to [Nahm] for another Mohs surgery.” (Id. at 6.) Plaintiff claims that he was seen

8 by Defendant Nguyen on January 7, 2020, Defendant Burke on July 12, 2019, Defendant

9 Zang-Do on August 19, 2019, Defendant Martin on August 19, 2019, Defendant Luu on

10 October 23, 2019, Defendant Casian on November 25, 2019, and Defendant Santos on

11 February 25, 2020. (See id.) Plaintiff also alleges Defendant Pollard, RJD Warden,

12 personally “view[ed] [Plaintiff’s] right lower eyelid” on January 23, 2020. (Id.)

13 Plaintiff seeks injunctive relief, $5,000,000 in compensatory damages,

14 $40,000,000 in punitive damages, and for “each Defendant listed to be held accountable.”

15 (Id. at 8.)

16 C. 42 U.S.C. § 1983

17 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

18 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

19 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must

20 allege two essential elements: (1) that a right secured by the Constitution or laws of the

21 United States was violated, and (2) that the alleged violation was committed by a person

22 acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye,

23 789 F.3d 1030, 1035-36 (9th Cir. 2015).

24 D. Rule 8

25 As an initial matter, the Court finds that Plaintiff’s Complaint fails to comply with

26 Rule 8. Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a

27 claim for relief in a pleading it must contain “a short and plain statement of the grounds

28 for the court’s jurisdiction” and “a short and plain statement of the claim showing that the

1 pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). See McHenry v. Renne, 84 F.3d

2 1172, 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was

3 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso,

4 United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th

5 Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose,”

6 “confusing,” “distracting, ambiguous, and unintelligible,” “highly repetitious,” and

7 comprised of “incomprehensible rambling,” while noting that “[o]ur district courts are

8 busy enough without having to penetrate a tome approaching the magnitude of War and

9 Peace to discern a plaintiff’s claims and allegations.”).

10 E. Eighth Amendment claims

11 Here, Plaintiff alleges Defendant Nahm “slash[ed] [his] left shoulder” during a

12 dermatology procedure but later “Nahm decided to stitch” the cut that was made.

13 (Compl. at 4.) Plaintiff also claims that Nahm’s assistant “sprayed” his sty on his eyelid

14 with “liquid nitrogen” which he claims was “used maliciously with gross negligence.”

15 (Id.) Plaintiff also claims that Nahm’s assistants performed a “biopsy on three locations”

16 which caused his eyelid to become “infected” and “swollen.” (Id. at 5.)

17 Prison officials are liable only if they are deliberately indifferent to the prisoner’s

18 serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Here, it is not

19 necessarily clear whether Plaintiff has alleged enough facts to demonstrate that he had a

20 serious medical need. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991)

21 (defining a “serious medical need” as one which the “failure to treat ... could result in

22 further significant injury or the ‘unnecessary and wanton infliction of pain.’”), overruled

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

24 (citing Estelle, 429 U.S. at 104); Iqbal, 556 U.S. at 678 (“[A] complaint must contain

25 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

26 face.’”) (quoting Twombly, 550 U.S. at 570). The “existence of an injury that a

27 reasonable doctor or patient would find important and worthy of comment or treatment;

28 the presence of a medical condition that significantly affects an individual’s daily

1 activities; or the existence of chronic and substantial pain are examples of indications that

2 a prisoner has a ‘serious’ need for medical treatment.” McGuckin, 974 F.3d at 1059-60.

3 However, even assuming Plaintiff’s medical issues were “objectively serious”

4 medical conditions, nothing in his Complaint supports a “reasonable inference that [any

5 individual] defendant” acted with deliberate indifference to his plight. Iqbal, 556 U.S. at

6 678. “In order to show deliberate indifference, an inmate must allege sufficient facts to

7 indicate that prison officials acted with a culpable state of mind.” Wilson v. Seiter, 501

8 U.S. 294, 302 (1991).

9 In his Complaint, Plaintiff claims the “slashing of [his] left shoulder” by Nahm

10 was “medical malpractice gross negligence.” (Compl. at 4.) However, despite Plaintiff’s

11 claims that Nahm “slashed” his shoulder, he also indicates that Nahm treated this cut.

12 (See id.) Plaintiff also appears to claim, although it is not entirely clear, that various

13 doctors at RJD committed “gross negligent medical malpractice.” (Id. at 6.) However,

14 he does not provide any specific factual allegations as to what any of these individual

15 RJD doctors did or did not do. Plaintiff appears to suggest that he believes the RJD

16 doctors should have referred him to an “eyelid specialist” as opposed to a dermatologist.

17 (Id. at 6.)

18 Deliberate indifference to medical needs must be substantial; inadequate treatment

19 due to malpractice, or even gross negligence, does not amount to a constitutional

20 violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.

21 2004) (“Deliberate indifference is a high legal standard.”) (citing Hallett v. Morgan, 296

22 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

23 1990)).

24 To the extent Plaintiff alleges the Defendants acted negligently and disagreed with

25 Plaintiff’s opinion as to the course of treatment, a § 1983 claim cannot sound merely in

26 negligence or substandard medical care. Farmer v. Brennan, 511 U.S. 825, 835 (1994)

27 (holding that a mere negligent failure to protect an inmate from harm is not actionable

28 under § 1983); Toguchi, 391 F.3d at 1057 (“Mere negligence in diagnosing or treating a

1 medical condition, without more, does not violate a prisoner’s Eighth Amendment

2 rights.”), quoting McGuckin, 974 F.2d at 1059. “Deliberate indifference,” on the other

3 hand, “is a high legal standard,” and claims of medical malpractice, negligence or a

4 difference of opinion concerning the course of treatment are insufficient to establish a

5 constitutional deprivation. Toguchi, 391 F.3d at 1060.

6 Plaintiff has merely alleged Defendants committed medical malpractice and had a

7 difference of opinion regarding his need for medical care. However, he has not alleged,

8 or provided any specific factual allegations, that any of the named Defendants acted with

9 deliberate indifference to his plight by “knowing of and disregarding an excessive risk to

10 his health and safety.”. Farmer, 511 U.S. at 837; Iqbal, 556 U.S. at 678.

11 In addition, once again, Plaintiff does not actually set forth any specific factual

12 allegations that Defendant Pollard actually knew of, yet disregarded any serious medical

13 need. See Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1193 (9th Cir. 2002)

14 (“[D]eliberate indifference requires the defendant to be subjectively aware that serious

15 harm is likely to result from a failure to provide medical care.”). Plaintiff does not state

16 any factual allegations that Warden Pollard played any role in his medical care.

17 Accordingly, the Court finds that Plaintiff has failed to state an Eighth Amendment

18 medical deliberate indifference claim against any of the named Defendants.

19 F. Grievance processing

20 Plaintiff seeks to hold Defendant Schobelock liable for “rejecting almost all of

21 [his] Health Care Appeals calling into question her credentials.” (Compl. at 3.) The

22 Court finds Plaintiff’s Complaint fails to state a claim as to Schobelock because an

23 official’s allegedly improper processing of a prisoner’s grievances or appeals, without

24 more, does not serve as a sufficient basis for section 1983 liability. Ramirez v. Galaza,

25 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate constitutional

26 entitlement to a specific prison grievance procedure.”) (citation omitted); Mann v. Adams,

27 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply because defendant

28 fails properly to process grievances submitted for consideration); see also Todd v.

1 California Department of Corrections and Rehabilitation, 615 Fed. Appx. 415, 415 (9th

2 Cir. 2015) (district court properly dismissed claim based on improper “processing and

3 handling of […] prison grievances,” since prisoners have no “constitutional entitlement to

4 a specific prison grievance procedure”) (citing Ramirez, 334 F.3d at 860) (quotation

5 marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545, 547 (9th Cir. 2014) (district

6 court properly dismissed § 1983 claims against defendants who “were only involved in

7 the appeals process”) (citing Ramirez, 334 F.3d at 860); Daniels v. Aguilera, No. 2:16-

8 CV-00996-JAM-CKD P, 2018 WL 558658, at *1 (E.D. Cal. Jan. 24, 2018), report and

9 recommendation adopted sub nom. Daniels v. Aguillera, No. 2:16-CV-00996-JAM-CKD

10 P, 2018 WL 1763311 (E.D. Cal. Apr. 12, 2018) (“Because there is no right to any

11 particular grievance process, it is impossible for due process to have been violated by

12 ignoring or failing to properly process prison grievances.”). Simply “‘[r]uling against a

13 prisoner on an administrative complaint does not cause or contribute to the violation.’”

14 Ellington v. Clark, 2010 WL 3001427, at *2 (E.D. Cal. Jul. 29, 2010) (quoting George v.

15 Smith, 507 F.3d 605, 609 (7th Cir. 2007)).

16 For these reasons, the Court finds Plaintiff’s claim that Schobelock denied his

17 grievances is insufficient to state any plausible claim upon which § 1983 relief may be

18 granted. See Iqbal, 556 U.S. at 678-79 (citations omitted); Valdivia v. Tampkins, No.

19 EDCV 16-1975 JFW (JC), 2016 WL 7378887, at *6 (C.D. Cal. Dec. 19, 2016) (sua

20 sponte dismissing claims predicated upon the alleged improper processing of inmate

21 grievances); 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Watison, 668 F.3d at 1112;

22 Wilhelm, 680 F.3d at 1121.

23 G. Leave to Amend

24 Thus, for all these reasons, the Court finds Plaintiff’s Complaint fails to state any

25 § 1983 claim upon which relief can be granted, and that it must be dismissed sua sponte

26 and in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See

27 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because Plaintiff is proceeding

28 pro se, however, the Court having now provided him with “notice of the deficiencies in

1 his complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698

2 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

3 1992)).

4 III. Conclusion and Orders

5 For the reasons explained, the Court:

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

7 (ECF No. 2);

8 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from

9 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing

10 monthly payments from his account in an amount equal to twenty percent (20%) of the

11 preceding month’s income and forwarding those payments to the Clerk of the Court each

12 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

13 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

14 ASSIGNED TO THIS ACTION;

15 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph

16 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;

17 4. DENIES Plaintiff’s duplicative Motion to Proceed IFP (ECF No. 8), without

18 prejudice as moot;

19 5. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

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

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

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

23 Amended Complaint must be complete by itself without reference to his original

24 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint

25 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

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

27 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

28 (noting that claims dismissed with leave to amend which are not re-alleged in an

1 amended pleading may be “considered waived if not repled.”).

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

3 || will enter a final Order dismissing this civil action based both on Plaintiff’s failure to

4 ||state a claim upon which relief can be granted pursuant to 28 U.S.C. §§$ 1915(e)(2)(B)

5 1915A(b), and his failure to prosecute in compliance with a court order requiring

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

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

8 || dismissal of the complaint into dismissal of the entire action.”).

9 6. The Clerk of Court is directed to mail a court approved form civil rights

10 |}complaint to Plaintiff.

11 IT IS SO ORDERED.

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13 || Dated: May 5, 2020 VU

14 n. John A. Houston

15 Ynited States District Judge

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