Thompson v. Rodriguez

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 GARY THOMPSON, Case No.: 3:23-cv-00515-RBM-LR

CDCR #BL-0487,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

A. RODRIGUEZ, Licensed Vocational

15 PURSUANT TO 28 U.S.C. § 1915(a)

Nurse; O. CHIMA, Licensed Vocational

16 Nurse; DOES 1-10, Correctional

AND

Institution Employees,

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Defendants. 2) DISMISSING COMPLAINT FOR

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FAILING TO STATE A CLAIM

19 PURSUANT TO

28 U.S.C. § 1915(e)(2) AND

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28 U.S.C. § 1915A(b)

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[Docs. 1–2]

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24 Plaintiff Gary Thompson (“Plaintiff” or “Thompson”), proceeding pro se and

25 incarcerated at California State Prison Substance Abuse Treatment Facility (“SATF”) in

26 Corcoran, California, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See

27 Compl., Doc. 1.) Thompson claims two licensed vocational nurses employed at Richard

28 J. Donovan Correctional Facility (“RJD”) violated his Eighth Amendment rights on April

1 23, 2022, by failing to adequately treat his broken finger while he was incarcerated there.

2 (See id. at 3‒5.) He seeks $2.25 million in general and punitive damages, and demands a

3 jury trial. (Id. at 7.)

4 Thompson has not paid the filing fee required by 28 U.S.C. § 1914(a) to commence

5 a civil action. Instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

6 to 28 U.S.C. § 1915(a). (Doc. 2.)

7 I. MOTION TO PROCEED IFP

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

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

10 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the fee is not waived for prisoners.

14 If granted leave to proceed IFP, they nevertheless remain obligated to pay the entire fee in

15 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.

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

17 dismissed for other reasons. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281

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

19 To qualify, section 1915(a)(2) requires prisoners seeking leave to proceed IFP to

20 submit a “certified copy of the trust fund account statement (or institutional equivalent) for

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

22 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of

27 $52, in addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial

Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)).

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

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

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

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

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

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

7 577 U.S. at 84.

8 In support of his IFP Motion, Thompson has submitted a copy of his California

9 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report, as well

10 as a prison certificate authorized by a SATF Accounting Officer. (See Doc. 2 at 4‒5, 7.)

11 See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These

12 documents show Thompson had one deposit of $185.65 to his trust account during the six

13 months prior to filing, but no available balance in his account at the time he filed suit. (See

14 Doc. 2 at 5, 7.) Therefore, the Court GRANTS Thompson’s Motion to Proceed IFP, and

15 declines to assess any initial filing fee because his trust account statements show he “has

16 no means to pay it.” Bruce, 577 U.S. 84–85. Instead, the Court DIRECTS the Secretary

17 of the CDCR to collect the entire $350 balance of the filing fees required by 28 U.S.C.

18 § 1914 and to forward those fees to the Clerk of the Court pursuant to the installment

19 payment provisions set forth in 28 U.S.C. § 1915(b)(2). See id.

20 II. INITIAL SCREENING

21 A. Standard of Review

22 Because Thompson is a prisoner and is proceeding IFP, his Complaint requires a

23 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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

25 frivolous, malicious, failing to state a claim, or seeking damages from defendants who are

26 immune. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28

27 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc)

28 (discussing 28 U.S.C. § 1915(e)(2)).

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

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

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

4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

5 2012) (Section 1915A “incorporates the familiar standard applied in the context of failure

6 to state a claim under Federal Rule of Civil Procedure 12(b)(6)”).

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

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

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

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

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

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

13 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and

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

15 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may

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

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

18 B. Factual Allegations

19 After Thompson fought with another RJD inmate on April 23, 2022, he claims his

20 finger was “actively bleeding” and he could not move it. (Compl. at 3.) He was treated by

21 LVN A. Rodriguez in the Program Office after the incident, who laughed, cleaned the

22 blood, and applied a bandage. (Id.) Thompson was sent back to his cell, but he alleges to

23 have been “sent back to medical” later the same day because his finger continued to bleed

24 and was swollen. (Id. at 4.) Once there, Thompson claims LVN Chima “attempted wound

25 care,” but “did not do it correctly,” and did not refer him to a doctor or a “higher level of

26 care.” (Id.)

27 Thompson alleges he “continuous[ly] complain[ed] to staff,” during the three days

28 following his injury, but received no medication, splint, or x-rays. (Id. at 3‒4.) On April

1 26, 2022, after his finger “started changing colors and was clearly infected,” his finger was

2 x-rayed and splinted, he was prescribed antibiotics and ibuprofen, and was referred for

3 surgery. (Id. at 4.)

4 C. 42 U.S.C. § 1983

5 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

6 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S.

7 386, 393–94 (1989) (citation omitted). “To state a claim under § 1983, a plaintiff must

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

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

10 acting under the color of State law.” Benavidez v. County of San Diego, 993 F.3d 1134,

11 1144 (9th Cir. 2021) (citing Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

12 2006)).

13 Prison officials act “under color of state law” when providing medical care to

14 prisoners. See West v. Atkins, 487 U.S. 42, 49‒50 (1988) (“[G]enerally, a public employee

15 acts under color of state law while acting in his official capacity or while exercising his

16 responsibilities pursuant to state law.”). Therefore, in order to determine whether

17 Thompson has pleaded a plausible claim for relief, the Court need only decide whether the

18 factual allegations in his Complaint are sufficient to show “each Government-official

19 defendant, through the official’s own individual actions, has violated the Constitution,”

20 and thus, may be held “liable for the misconduct alleged.” Iqbal, 556 U.S. at 676, 678.

21 D. Doe Defendants

22 First, to the extent Thompson includes “Does 1-10” in the caption of his Complaint,

23 and describes them as “employed by [a] correctional institution r[un] by the State of

24 California,” see Compl. at 2, but does not include any factual allegations or alleged

25 constitutional violation involving or committed by the Does, he fails to state any plausible

26 claim for relief against them. See Iqbal, 556 U.S. at 678.

27 “A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe

28 2, John Doe 3, and so on, but he must allege specific facts showing how each particular

1 doe defendant violated his rights.” Cuda v. Employees/Contractors/Agents at or OCCC,

2 2019 WL 2062945, at *3–4 (D. Haw. May 9, 2019); see also Keavney v. County of San

3 Diego, No. 3:19-cv-01947-AJB-BGS, 2020 WL 4192286, at *4‒5 (S.D. Cal. 2020) (noting

4 that while Doe pleading is neither authorized nor specifically barred by the Federal Rules,

5 “a complaint using fictitious names for unidentified defendants still requires ‘specific facts

6 showing how each particular Doe Defendant violated his rights.”). Thompson claims to

7 have complained to unidentified RJD “staff” during the three days following his injury.

8 (See Compl. at 3‒4.) He does not, however, claim those staff members are the unidentified

9 Does he seeks to sue, nor does he allege any facts to even minimally suggest any Doe

10 caused him harm. “Liability under § 1983 arises only upon a showing of personal

11 participation by the defendant,” Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1013

12 (S.D. Cal. 2018), and causation is “a required element of a § 1983 claim.” Estate of Brooks

13 ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999).

14 Because the Court finds Thompson’s Complaint fails to explain what each Doe is

15 alleged to have done and lacks facts which plausibly suggest Does 1-10 violated the

16 Constitution, it DISMISSES any purported claims against them for failing to state a claim

17 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Iqbal, 556 U.S. at 678;

18 Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

19 E. Eighth Amendment Claims v. LVNs Rodriguez and Chima

20 Second, while prisoners are entitled to “ready access to adequate medical care,”

21 Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate indifference to

22 serious medical needs of prisoners” violates the Eighth Amendment, Estelle v. Gamble,

23 429 U.S. 97, 104 (1976), the Court finds Thompson’s allegations involving LVNs

24 Rodriguez and Chima also fall short of showing he is plausibly entitled to relief. See Iqbal,

25 556 U.S. at 678.

26 “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could

27 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”

28 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104)

1 overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

2 1997; see also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016); Jett v.

3 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Thompson claims he broke his right index

4 finger during a fight with another inmate on April 23, 2022, that a “bone was visible,” and

5 that it was “actively bleeding” and swollen. (See Compl. at 3–4.) This “factual content”

6 is sufficient to plausibly show his injury constituted a serious medical need. See Iqbal, 556

7 U.S. at 678. “Broken bones in the hand constitute a serious medical need.” Reese v. Carey,

8 No. CIVS05-2336 GEB KJM P, 2009 WL 650492, at *5 (E.D. Cal. Mar. 12, 2009), report

9 and recommendation adopted, No. 2:05CV2336 GEB KJM P, 2009 WL 1324567 (E.D.

10 Cal. May 12, 2009), aff’d in part, rev’d in part on other grounds and remanded, 407 F.

11 App’x 101 (9th Cir. 2010) (citing Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir. 1998);

12 Atkins v. Brewer, 2009 WL 29873 (E.D. Cal. Jan. 5, 2009) (“Plaintiff’s allegations that his

13 finger was broken establishes that he had a serious medical need.”).

14 However, in order to plead a viable Eighth Amendment claim for inadequate medical

15 care, Thompson must also allege both LVNs Rodriguez and Chima acted with deliberate

16 indifference in the course of treating his injury on April 23, 2022. See Colwell v. Bannister,

17 763 F.3d 1060, 1066 (9th Cir. 2014) (citing Estelle, 429 U.S. at 104). “Deliberate

18 indifference is a high legal standard” and is established only where the defendant

19 subjectively “knows of and disregards an excessive risk to inmate health and safety.”

20 Toguchi v. Chung, 391 F.3d 1051, 1057, 1060 (9th Cir. 2004) (citation and internal

21 quotation marks omitted). The prisoner must allege facts sufficient to show “(a) a

22 purposeful act or failure to respond to [his] pain or possible medical need and (b) harm

23 caused by the indifference.” Jett, 439 F.3d at 1096 (citation omitted). “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 Norvell v. Roberts, No. 20-cv-0512 JLS (NLS), 2020 WL 4464454, at *4 (S.D. Cal. Aug.

28 4, 2020) (citing Estelle, 429 U.S. at 105–07); Wood v. Housewright, 900 F.2d 1332, 1334

1 (9th Cir. 1990); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v.

2 Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).

3 Here, Thompson admits he was treated twice on the same day he was injured—first

4 by LVN Rodriguez in the Program Office, who “laughed,” but nevertheless cleaned and

5 bandaged his finger, and later that same day by LVN Chima after he was “sent back to

6 medical” because his finger “kept bleeding” and had become swollen. (Compl. at 3, 4.)

7 Thompson contends only that Chima “attempted wound care [but] did not do it correctly.”

8 (Id. at 4.) He faults both Rodriguez and Chima for failing to apply a splint, prescribe

9 medication, authorize an x-ray, or to immediately refer him to a doctor for a “higher level

10 of care.” (Id. at 3, 4.)

11 But a difference of opinion between an inmate and prison medical personnel—or

12 between medical professionals—regarding appropriate medical diagnosis and treatment is

13 not enough to support a viable deliberate indifference claim. Sanchez, 891 F.2d at 242;

14 Toguchi, 391 F.3d at 1058. Essentially, Thompson contends both Rodriguez and Chima

15 should have done more or treated him differently on the day he was injured. But to hold

16 either Rodriguez or Chima liable for violating the Eighth Amendment’s prohibition of cruel

17 and unusual punishment, he must plead facts sufficient to plausibly show their course of

18 treatment for his broken finger, i.e., cleaning, bandaging, and subsequent wound care, “was

19 medically unacceptable under the circumstances” and was chosen “in conscious disregard

20 of an excessive risk” to his health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir.

21 2016) (citations omitted); Iqbal, 556 U.S. at 678. He has failed to do so.

22 Instead, Thompson’s claims against both LVNs sound only in negligence. “[A]

23 complaint that a physician has been negligent in diagnosing or treating a medical condition

24 does not state a valid claim of medical mistreatment under the Eighth Amendment.

25 Medical malpractice does not become a constitutional violation merely because the victim

26 is a prisoner.” Estelle, 429 U.S. at 106; see also Ruiz v. Fortune, No. 1:20-CV-01100-EPG

27 PC, 2021 WL 307560, at *4 (E.D. Cal. Jan. 29, 2021) (finding prison officials’ laughter

28 and choice of physical therapy to treat back pain over immediate MRI insufficient to show

1 deliberate indifference), report and recommendation adopted, 2021 WL 949446 (E.D. Cal.

2 Mar. 12, 2021); see also Gonzalez v. Lam, 2020 WL 5094835, at *9 (N.D. Cal. Aug. 28,

3 2020), aff’d, 2021 WL 6102093 (9th Cir. Dec. 22, 2021) (“Even if Plaintiff should have

4 received different treatment for his medical needs, a difference of opinion as to the urgency

5 and treatment of his medical needs is insufficient, as a matter of law.”); Ciokewicz v.

6 Harbor, No. 1:18-CV-00932-SAB PC, 2018 WL 3491682, at *2 (E.D. Cal. July 19, 2018)

7 (finding prison officials’ laughter after plaintiff’s injury and treatment for a concussion

8 “while not condoned,” was insufficient to support a claim of deliberate indifference).

9 Therefore, the Court finds Thompson’s allegations against LVNs Rodriguez and

10 Chima also fail to state a plausible Eighth Amendment claim for relief pursuant to 28

11 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Iqbal, 556 U.S. at 678; Watison, 668

12 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

13 F. Leave to Amend

14 In light of his pro se status, the Court grants Thompson leave to amend his Complaint

15 in order to address the pleading deficiencies identified in this Order. See Rosati v. Igbinoso,

16 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint

17 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely

18 clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting

19 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).

20 III. CONCLUSION

21 For the reasons discussed, the Court:

22 1. GRANTS Thompson’s Motion to Proceed IFP pursuant to 28 U.S.C.

23 § 1915(a) (Doc. 2).

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

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

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

27 and forwarding those payments to the Clerk of the Court each time the amount in the

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

1 INCLUDE THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

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

3 on Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-

4 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.

5 4. DISMISSES Thompson’s Complaint sua sponte and in its entirety based on

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

7 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

8 5. GRANTS Thompson 45 days leave from the date of this Order in which to

9 file an Amended Complaint which cures the deficiencies of the pleading noted.

10 Thompson’s Amended Complaint must be complete by itself without reference to his

11 original pleading. Defendants not named and any claim not re-alleged in his Amended

12 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Lacey v. Maricopa Cty.,

13 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which

14 are not re-alleged in an amended pleading may be “considered waived if not repled.”); Hal

15 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

16 (“[A]n amended pleading supersedes the original.”).

17 If Thompson fails to file an Amended Complaint within 45 days, the Court will enter

18 a Final Order dismissing this civil action based both on his failure to state a claim upon

19 which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his

20 failure to prosecute in compliance with a court order requiring amendment. See Lira v.

21 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of

22 the opportunity to fix his complaint, a district court may convert the dismissal of the

23 complaint into dismissal of the entire action.”).

24 IT IS SO ORDERED.

25 DATE: July 7, 2023

_____________________________________

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HON. RUTH BERMUDEZ MONTENEGRO

27 UNITED STATES DISTRICT JUDGE

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