McCoy v. Le

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RICKY EUGENE McCOY, Case No.: 21-cv-01755-BAS-AHG

CDCR #BN-6712,

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ORDER:

Plaintiff,

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vs. 1) GRANTING RENEWED MOTION

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TO PROCEED IN FORMA PAUPERIS

15 [ECF No. 7]

PHA C. LE, DO, Physician;

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KERI L. KONDON, MD; AND

17 PALOMAR MEDICAL CENTER,

18 Defendants. 2) DISMISSING COMPLAINT FOR

FAILING TO STATE A CLAIM

19 PURSUANT TO 28 U.S.C. § 1915(e)(2)

AND 28 U.S.C. § 1915A(b)

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[ECF No. 1]

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22 Plaintiff Ricky Eugene McCoy, incarcerated at Calipatria State Prison (“CAL”), and

23 proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See

24 ECF No. 1, “Compl.”.) On January 16, 2021, as McCoy was taken into police custody, he

25 reported to the police officer that he had fentanyl in his rectum. He was transported to

26 Palomar Medical Center in Escondido, California, for treatment and alleges that two

27 doctors failed to provide him adequate medical attention. (Id. at 2, 3.) He seeks $20,000

28 in compensatory and punitive damages. (Id. at 7.)

1 I. PROCEDURAL HISTORY

2 McCoy did not pay the filing fee required by 28 U.S.C. § 1914(a) to commence a

3 civil action when he filed his Complaint. Instead, he filed a “Request to Waive Court Fees”

4 on a Judicial Council of California Mandatory Form, which the Court liberally construed

5 as a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See

6 ECF No. 2.) On November 22, 2021, the Court denied McCoy’s IFP Motion because he

7 failed to attach copies of his trust account statements as required by 28 U.S.C. § 1915(a)(2),

8 but granted leave to correct that deficiency. (See ECF No. 6.) McCoy has since responded

9 by filing a renewed Motion to Proceed IFP, this time attaching the certified prison trust

10 account documentation missing from his prior attempt. (See ECF No. 7.).

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12 II. RENEWED MOTION TO PROCEED IN FORMA PAUPERIS

13 As McCoy now knows, all parties instituting any civil action, suit or proceeding in

14 a district court of the United States, except an application for writ of habeas corpus, must

15 pay a filing fee of $402. See 28 U.S.C. § 1914(a).1 The action may proceed despite a

16 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant

17 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

18 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for

19 prisoners, however. If granted leave to proceed IFP, prisoners remain obligated to pay the

20 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016);

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

22 actions are dismissed for other reasons. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v.

23 Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative

27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court

Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does

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1 To qualify, § 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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

3 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

4 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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

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

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

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

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

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

12 577 U.S. at 84.

13 In support of his renewed IFP Motion, McCoy has submitted a prison certificate

14 certified by a CAL Trust Account Officer attesting as to his trust account transactions,

15 deposits, and balances for the 6-month period preceding the filing of his Complaint. (See

16 ECF No. 7 at 4.) See also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d

17 at 1119. This certificate shows McCoy carried an average monthly balance of $100.85,

18 and had $77.99 in average monthly deposits credited to his account over that time.

19 Nevertheless, McCoy had only $.18 to his credit at the time of filing. (See ECF No. 7 at

20 4.)

21 Therefore, the Court GRANTS McCoy’s renewed Motion to Proceed IFP (ECF No.

22 7) and declines to assess any initial partial filing fee pursuant to 28 U.S.C. § 1915(a)(1)

23 and (b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

24 prohibited from bringing a civil action or appealing a civil action or criminal judgment for

25 the reason that the prisoner has no assets and no means by which to pay the initial partial

26 filing fee.”); Bruce, 577 U.S. at 86; Taylor, 281 F.3d at 850 (finding that 28

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

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

1 is ordered.”). Instead, the Court DIRECTS the Secretary of the California Department of

2 Corrections and Rehabilitation (“CDCR”), or her designee, to collect the entire $350

3 balance of the filing fee required by 28 U.S.C. § 1914 and to forward all payments to the

4 Clerk of the Court pursuant to the installment provisions set forth in 28 U.S.C.

5 § 1915(b)(2).

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7 III. SCREENING

8 A. Standard of Review

9 Because McCoy is a prisoner and is proceeding IFP, his Complaint requires a pre-

10 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes,

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

12 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

13 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C.

14 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc));

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

16 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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

18 903, 920 n.1 (9th Cir. 2014) (citation omitted).

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

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

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

22 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

23 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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

25 12(b)(6)”).

26 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

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

28 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);

1 Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare

2 recitals of the elements of a cause of action, supported by mere conclusory statements, do

3 not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation where the

4 petitioner is pro se, particularly in a civil rights case, to construe the pleadings liberally and

5 to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7

6 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may

7 not “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents

8 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

9 B. Factual Allegations

10 On January 16, 2021, while he was being “taken into custody,” McCoy claims to

11 have informed an unidentified police officer that he had placed fentanyl in his rectum. (See

12 Compl. at 3.) McCoy alleges he was then transported to the Palomar Medical Center

13 Emergency Room and “placed in a bed and left in a hallway.” (Id.) He contends he was

14 “not seen by any doctor[,] given any ex-rays, . . . the choice for a laxative[,] or provided

15 any treatment at all.” (Id.) McCoy claims he was cleared after a “couple hours,” and sent

16 to jail where during “the next day or 2” the drugs were “found in [his] cell[,]” and he was

17 “charged.” (Id.) McCoy concludes that he “could have died d[ue] the lack of treatment,”

18 and alleges Defendants Le and London, whom he identifies as doctors at Palomar, and

19 Palomar Medical Center itself, violated his “right to medical care” and his right to be free

20 from “cruel and unusual punishment.” (Id.)

21 C. Discussion

22 1. 42 U.S.C. § 1983

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

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

25 1063, 1067 (9th Cir. 2006). But it is not merely a “font of tort law.” Parratt v. Taylor,

26 451 U.S. 527, 532 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327

27 (1986); Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (Section 1983 “is not itself a

28 source of substantive rights, but merely provides a method for vindicating federal rights

1 elsewhere conferred.”) (internal quotation marks and citations omitted).

2 Therefore, to state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

3 essential elements: (1) that a right secured by the Constitution or laws of the United States

4 was violated, and (2) that the alleged violation was committed by a person acting under

5 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

6 1035‒36 (9th Cir. 2015).

7 2. State Action

8 First, to the extent McCoy seeks to sue Palomar Medical Center, Dr. Le, and Dr.

9 London, his Complaint fails to state a claim upon which § 1983 relief may be granted

10 because none of these parties is alleged to have acted “under color of state law” on January

11 16, 2021. “[I]n a § 1983 action . . . the statutory requirement of action ‘under color of state

12 law’ and the ‘state action’ requirement of the Fourteenth Amendment are identical.” Lugar

13 v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). “First, the deprivation must be caused

14 by the exercise of some right or privilege created by the State or by a rule of conduct

15 imposed by the state[.]” Id. “Second, the party charged with the deprivation must be a

16 person who may fairly be said to be a state actor.” Id. “While the second Lugar prong

17 ‘does not restrict the application of the Constitution solely to governmental entities,’”

18 Roberts v. AT&T Mobility LLC, 877 F.3d 833, 838 (9th Cir. 2017) (citation omitted), “a

19 private party’s actions must be ‘properly attributable to the State.’” Id. (quoting Flagg

20 Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)).

21 Private hospitals like Palomar Medical Center and doctors employed there like

22 Defendants Le and London, are not generally considered state actors amenable to suit under

23 § 1983. See Briley v. California, 564 F.2d 849, 855‒856 (9th Cir. 1977) (noting that

24 “private hospitals and physicians have consistently been dismissed from § 1983 actions for

25 failing to come within the color of state law requirement of this section.”); see also Babchuk

26 v. Indiana Univ. Health, Inc., 809 F.3d 966, 970‒71 (7th Cir. 2016); Fonseca v. Kaiser

27 Permanente Med. Ctr. Roseville, 222 F. Supp. 3d 850, 862 (E.D. Cal. 2016) (“[Even though

28 doctors’ services are ‘affected with a public interest,’ the same may be said of many

1 professions, and this does not automatically convert their every action into an action of the

2 state.”) (citation omitted).

3 Defendants’ conduct, here, could qualify as state action. For instance, courts have

4 found state action where medical providers contracted directly with the State or

5 municipality to provide medical services to indigents, and the injured prisoner was

6 committed to the providers’ care while in state custody. See West, 487 U.S. at 53‒54; cf.

7 Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (finding

8 state action where hospital was alleged to have “contract[ed] with the state . . . to provide

9 medical services to indigent citizens”); George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F.

10 Supp. 2d 922, 934 (N.D. Cal. 2010) (“A private . . . hospital that contracts with a public

11 prison system to provide treatment for inmates performs a public function and acts under

12 color of law for purposes of § 1983.”). McCoy’s pleading, however, contains no

13 allegations regarding state action. Instead, his relevant allegations include (1) that he was

14 “transported” to Palomar Medical Center by police, and “taken to jail” afterward, (Compl,

15 at 3), (2) that Dr. Lee “showed a clear disregard to provide [him] proper medical treatment”

16 (Compl. at 2) and (3) that Dr. London, “failed to instruct her staff and herself to provide

17 proper medical treatment,” (Id.). Without more, McCoy’s Complaint fails to allege facts

18 sufficient to plausibly demonstrate Defendants’ acts or omissions on January 16, 2021,

19 were attributable to the state. See Flagg, 436 U.S. at 156, see also Sliwinski v. Maysent,

20 No. 3:18-CV-2653-CAB-RBB, 2019 WL 581720, at *4 (S.D. Cal. Feb. 13, 2019) (sua

21 sponte dismissing inadequate medical care claims against UCSD Hospital employees who

22 treated arrestee prior to booking in county jail due to lack of state action pursuant to 28

23 U.S.C. § 1915(e)(2) and § 1915A).

24 3. Constitutional Violation

25 Second, “[t]he Cruel and Unusual Punishments Clause ‘was designed to protect

26 those convicted of crimes,’” and therefore it “applies ‘only after the State has complied

27 with the constitutional guarantees traditionally associated with criminal prosecutions.’”

28 Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting Ingraham v. Wright, 430 U.S. 651,

1 671 (1977)). Here, McCoy claims that he was transported to Palomar after he informed an

2 unidentified police officer that he had “place[d] fentanyl in [his] rectum.” (See Compl. at

3 3.) While he is currently incarcerated at CAL, he does not allege to have been convicted

4 of any offense prior to January 16, 2021. Therefore, the Eighth Amendment’s prohibition

5 of cruel and unusual punishments does not apply—even if Defendants were alleged to have

6 acted under color of state law. See Whitley, 475 U.S. at 318.

7 Finally, each of McCoy claims that Palomar Medical Center doctors (1) disregarded

8 his needs and (2) failed to provide adequate emergency room care, sound in negligence

9 and/or medical malpractice. See Davidson v. Cannon, 474 U.S. 344, 347 (1986) (that a

10 plaintiff may have suffered harm, even if due to another’s negligent conduct, does not in

11 itself, necessarily demonstrate an abridgment of constitutional protections). “The

12 Constitution does not guarantee due care on the part of state officials; liability for

13 negligently inflicted harm is beneath the threshold of constitutional due process.” County

14 of Sacramento v. Lewis, 523 U.S. 833, 849 (1998); see also Toguchi v. Chung, 391 F.3d

15 1051, 1060 (9th Cir. 2004) (citing Smith v. City of Fontana, 818 F.2d 1411, 1418, n. 9 (9th

16 Cir. 1987) (“[T]he Due Process Clause is simply not implicated by a negligent act of an

17 official . . .”) (citation and internal quotation marks omitted) (emphasis original).

18 Instead, a pretrial detainee’s claim of denial of the right to adequate medical care is

19 analyzed under an objective deliberate indifference standard. See Gordon v. Cnty. of

20 Orange, 888 F.3d 1118, 1124‒25 (9th Cir. 2018); see also Sandoval v. Cnty. of San Diego,

21 985 F.3d 657, 669 (9th Cir. 2021). In order to plead a plausible claim for relief under the

22 Fourteenth Amendment, McCoy must also allege facts sufficient to plausibly show: “(i)

23 the defendant made an intentional decision with respect to the conditions under which the

24 plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering

25 serious harm; (iii) the defendant did not take reasonable available measures to abate that

26 risk, even though a reasonable official in the circumstances would have appreciated the

27 high degree of risk involved—making the consequences of the defendant’s conduct

28 obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s

1 injuries.” Gordon, 888 F.3d at 1125.

2 “With respect to the third element, the defendant’s conduct must be objectively

3 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each

4 particular case.’” Id. (quoting Castro v. City of Los Angeles, 833 F.3d 1060, 1071 (9th

5 Cir. 2016)). Specifically, a plaintiff must allege “more than negligence but less than

6 subjective intent—something akin to ‘reckless disregard.’” Id. (quoting Castro, 833 F.3d

7 at 1071). The “mere lack of due care,” as McCoy alleges here, is insufficient. Id. (internal

8 quotation omitted); see also Hopper v. Cnty. of Riverside, 2018 WL 6092563, at *4 (C.D.

9 Cal. Nov. 20, 2018) (sua sponte dismissing civil detainee’s claims that medical official

10 performed only a “perfunctory physical examination,” “declined to order diagnostic tests”

11 and, “disregarded complaints of pain” insufficient to meet Fourteenth Amendment’s

12 objective deliberate indifference standards pursuant to 28 U.S.C. § 1915(e)(2) and §

13 1915A).

14 Accordingly, the Court finds McCoy’s Complaint fails to state a claim upon which

15 § 1983 relief can be granted, and it must therefore be DISMISSED sua sponte pursuant to

16 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Williams, 875 F.3d at 502; Rhodes, 621

17 F.3d at 1004.

18 4. Leave to Amend

19 In light of his pro se status, the Court also GRANTS McCoy leave to amend all the

20 pleading deficiencies it has identified, if he can. See Rosati v. Igbinoso, 791 F.3d 1037,

21 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave

22 to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the

23 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v.

24 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).

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1 IV. CONCLUSION AND ORDER

2 Accordingly, the Court:

3 1. GRANTS McCoy’s renewed Motion to Proceed IFP pursuant to 28 U.S.C.

4 § 1915(a) (ECF No. 7).

5 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from

6 McCoy’s trust account the $350 filing fee owed in this case by garnishing monthly

7 payments in an amount equal to twenty percent (20%) of the preceding month’s income

8 and forwarding those payments to the Clerk of the Court each time the amount in Plaintiff’s

9 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

10 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

11 ACTION.

12 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

13 on Kathleen Alison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-

14 0001, or by forwarding an electronic version to trusthelpdesk@cdcr.ca.gov.

15 4. DISMISSES McCoy’s Complaint sua sponte and in its entirety based on his

16 failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

17 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

18 5. GRANTS McCoy sixty (60) days leave from the date of this Order in which

19 to file an Amended Complaint which cures the deficiencies of pleading noted. McCoy’s

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

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

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

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

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

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

26 “considered waived if not repled.”).

27 If McCoy fails to file an Amended Complaint within the time provided, the Court

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

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

2 || 1915A(b), and his failure to prosecute in compliance with a court order requiring

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

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

5 || dismissal of the complaint into dismissal of the entire action.’’).

6 IT IS SO ORDERED.

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8 || Dated: March 25, 2022 ’

9 (pil A (Haphoa. 6

10 United States District Judge

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