Pies v. San Diego Sheriff's Department

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 GABRIEL PIES, Case No.: 3:23-cv-01097-JO-LR

Booking #23709854,

12

ORDER GRANTING MOTION TO

Plaintiff,

13 PROCEED IN FORMA PAUPERIS

vs. AND SCREENING COMPLAINT

14

PURSUANT TO 28 U.S.C. §

15 1915(e)(2)(B) AND 28 U.S.C. §

SAN DIEGO SHERIFF’S

1915A(b)

16 DEPARTMENT; RENICK, Sergeant

#4747; BERNAL PAREDES, Deputy

17

#4488; NEWLAN, Deputy #3749;

18 KERNS, Deputy #3999; LIZARRAGA,

Lieutenant #5400; and ARGUERO, Nurse

19

#4970,

20 Defendants.

21

22

23 Plaintiff Gabriel Pies (“Plaintiff”) filed a civil rights suit pursuant to 42 U.S.C. §

24 1983. Proceeding pro se, he alleges that several San Diego County officials denied him

25 adequate medical care and caused him to suffer an asthma attack while he was detained at

26 San Diego County George Bailey Detention Facility. Dkt. 1 (“Compl.”) at 4‒5. Plaintiff

27 also filed a request to proceed in forma pauperis (“IFP”). Dkt. 2. For the reasons below,

28 the Court grants Plaintiff’s motion to proceed IFP and, after screening his complaint,

1 dismisses all of his claims except for his inadequate medical care claim against Deputy

2 Newlan.

3 I. MOTION TO PROCEED IFP

4 A party may initiate a civil action without prepaying the required filing fee if the

5 Court grants leave to proceed in forma pauperis based on indigency. 28 U.S.C. § 1915(a);

6 Andrews v. Cervantes, 493 F.3d 1047, 1051 n.1 (9th Cir. 2007). Prisoners seeking to

7 establish an inability to pay must also submit a “certified copy of the [prisoner’s] trust fund

8 account statement (or institutional equivalent) for . . . the 6-month period immediately

9 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d

10 1113, 1119 (9th Cir. 2005). Prisoners who proceed IFP must repay the entire fee in

11 installments regardless of whether their action is ultimately dismissed. 28 U.S.C. §

12 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016).

13 In support of his verified IFP motion, Plaintiff has submitted a San Diego County

14 Sheriff’s Department Detentions Division certificate verifying his trust account activity.

15 Dkt. 2 at 4. This statement shows that while Plaintiff had $49.17 in average monthly

16 deposits credited to his account, he maintained an average monthly balance of $0.13. His

17 available balance as of the time of filing was only $0.78. Id. The Court finds that Plaintiff

18 has established an inability to pay the required $405 filing fee at the outset of the litigation

19 and GRANTS his request to proceed IFP. Id. Plaintiff will be required to pay the full $405

20 filing fee in installments which will be collected from his trust account as set forth in 28

21 U.S.C. § 1915(b)(2).

22 II. BACKGROUND

23 While detained at George Bailey Detention Facility, Plaintiff experienced several

24 episodes of labored breathing. Compl. at 4, 5, 9. On March 28, 2023, Plaintiff asked for

25 an inhaler at 9:50 a.m. In response to this request, Deputy Estrada “mocked” him and did

26 not provide one until 11:08 p.m. Id. at 4. On March 30, 2023, Plaintiff again requested

27 an inhaler, this time from Deputy Rowlands, but Rowlands did not contact medical staff

28 or take any measures to provide one to Plaintiff. Id. On April 1, 2023, Plaintiff used a

1 call button in his cell to signal that he was experiencing an emergency. Id. When Deputy

2 Newlan responded to his emergency call, Plaintiff informed him that he was having

3 difficulty breathing and requested an inhaler. Id. Instead of bringing him an inhaler,

4 Deputy Newlan taunted Plaintiff by suggesting he file a grievance describing him as the

5 “tall handsome white man with glasses.” Id.

6 That day, Plaintiff filed a grievance with Sgt. Renick regarding this incident but

7 received discipline instead of medical care. Id. at 5, 12. Instead of providing medical

8 assistance in response to his complaint, Deputy Kerns locked down Plaintiff’s module to

9 search for the pen Plaintiff used to write the grievance. Id. at 5, 9‒11. Lieutenant

10 Lizarraga then instructed deputies to escort Plaintiff to a disciplinary separation cell in

11 Housing Unit 6. Id. at 5, 9. While escorting him, Deputies Paredes and Kerns cuffed him

12 tightly enough to “cut off blood flow.” Id.

13 Shortly after reaching his disciplinary separation cell, Plaintiff experienced another

14 asthma attack. Id. at 5. Sgt. Renick called for emergency help, but the arriving medical

15 staff was unable to immediately provide Plaintiff the inhaler he needed. Id. (Plaintiff

16 alleges this happened because Nurse Arquero was holding on to his inhaler.) Id. One of

17 the responding nurses administered a dose of Narcan instead, but this only increased

18 Plaintiff’s heart rate and triggered a panic attack. Id. Plaintiff was eventually given his

19 inhaler as well as medicine to stop the panic attack. Id.

20 Based on these facts, Plaintiff filed a section 1983 lawsuit alleging that Defendants

21 Newlan, Resnick, Lizarraga, Paredes, Kerns, and Arquero violated his right to adequate

22 medical care. Id. at 3, 4. He also alleges that Defendants Kerns and Paredes used

23 excessive force when they handcuffed him. Id. at 4, 5. Finally, he names the San Diego

24 Sheriff’s Department (“SDSD”) as a defendant on both claims, presumably alleging that

25 it is liable for the actions of the individual Defendants. Id. at 3.

26 III. LEGAL STANDARDS

27 A. Screening Pursuant to 28 U.S.C. § 1915A

28 Pursuant to 28 U.S.C. § 1915(a), the Court must sua sponte screen prisoner

1 complaints seeking redress from a government entity or officer and dismiss any portions

2 that are frivolous, malicious, fail to state a claim, or seek damages from defendants who

3 are immune. Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017)

4 (citing 28 U.S.C. § 1915A(b)). “Failure to state a claim under § 1915A incorporates the

5 familiar standard applied in the context of failure to state a claim under Federal Rule of

6 Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule

7 12(b)(6) requires that a complaint “contain sufficient factual matter . . . to state a claim to

8 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

9 quotation marks omitted). While detailed factual allegations are not required, “[t]hreadbare

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

11 not suffice” to state a claim. Id. “A claim has facial plausibility when the plaintiff pleads

12 factual content that allows the court to draw the reasonable inference that the defendant is

13 liable for the misconduct alleged.” Id. Although failure to state a claim under § 1915(e)

14 incorporates the above Rule 12(b)(6) standards, a pro se litigant need only satisfy a “low

15 threshold” to “proceed past the screening stage.” Wilhelm, 680 F.3d at 1121, 1123.

16 When a court dismisses a complaint, it must then decide whether to grant leave to

17 amend. Federal Rule 15(a) provides that a district court should “freely give leave [to

18 amend] when justice so requires.” Fed. R. Civ. P. 15(a). A district court has discretion to

19 deny leave to amend when a proposed amendment would be futile. Chappel v. Lab. Corp.

20 of America, 232 F.3d 719, 725–26 (9th Cir. 2000). Amendment is futile “if no set of facts

21 can be proved under the amendment to the pleadings that would constitute a valid and

22 sufficient claim or defense.” Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir.

23 1988) (overruled on other grounds).

24 B. Standard for § 1983 Actions

25 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

26 acting under color of state law, violate federal constitutional or statutory rights.”

27 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a

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

1 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation

2 marks omitted). “To establish section 1983 liability, a plaintiff must show both (1)

3 deprivation of a right secured by the Constitution and laws of the United States, and (2)

4 that the deprivation was committed by a person acting under color of state law.” Tsao v.

5 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (internal citation and quotation

6 marks omitted).

7 IV. DISCUSSION

8 After screening Plaintiff’s complaint, the Court concludes that Plaintiff has satisfied

9 the “low threshold” for stating a section 1983 claim for inadequate medical care against

10 Deputy Newlan. See Wilhelm, 680 F.3d at 1121. The Court will, therefore, only address

11 his claims against the remaining defendants, Resnick, Lizarraga, Paredes, Kerns, Arquero,

12 and San Diego Sheriff’s Department. First, the Court will consider whether Plaintiff has

13 sufficiently pled that Defendants Resnick, Lizarraga, Paredes, Kerns, and Arquero acted

14 with reckless disregard to his objectively serious medical needs, as required for a section

15 1983 inadequate medical care claim. Second, the Court will consider whether Plaintiff has

16 stated an excessive force claim against Defendants Paredes and Kerns by alleging that they

17 used objectively unreasonable force against him. Finally, the Court will consider whether

18 Plaintiff’s allegations concerning the above individuals are sufficient to establish liability

19 against the San Diego Sheriff’s Department. The Court will discuss each of these issues

20 in greater detail below.

21 A. Inadequate Medical Care Claim

22 The Court first considers whether Plaintiff has validly pled that Defendants Resnick,

23 Lizarraga, Paredes, Kerns, and Arquero denied him adequate medical care by acting with

24 deliberate indifference to his serious medical needs. A pretrial detainee who brings an

25 inadequate medical care claim must allege sufficient facts that the defendant’s actions were

26 objectively unreasonable. Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir.

27 2018). Specifically, the plaintiff must establish these elements:

28 (i) the defendant made an intentional decision with respect to the conditions

1 under which the plaintiff was confined; (ii) those conditions put the plaintiff

2 at substantial risk of suffering serious harm; (iii) the defendant did not take

3 reasonable available measures to abate that risk, even though a reasonable

4 official in the circumstances would have appreciated the high degree of risk

5 involved—making the consequences of the defendant’s conduct obvious; and

6 (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.

7 Russell v. Lumitap, 31 F.4th 729, 739 (9th Cir. 2022) (quoting Gordon, 888 F.3d at 1124–

8 25). Regarding the third element, “the plaintiff must ‘prove more than negligence but less

9 than subjective intent—something akin to reckless disregard.’” Gordon, 888 F.3d at 1125

10 (quoting Castro, 833 F.3d at 1071).

11 Here, Plaintiff fails to allege that Defendants Resnick, Lizarraga, Paredes, Kerns, or

12 Arquero took any actions which placed Plaintiff at substantial medical risk. First, Plaintiff

13 makes no allegations against Lt. Lizarraga, Deputy Paredes, and Deputy Kerns relating to

14 his medical condition, the onset of his asthma attacks, or their reaction to these attacks. His

15 only allegations against these three officers concern their roles in the search of his cell and

16 his subsequent escort to a disciplinary unit. Specifically, Deputy Kerns ordered the

17 lockdown of Plaintiff’s cell so that it could be searched, and Lt. Lizarraga ordered Deputy

18 Kerns and Paredes to escort Plaintiff to a disciplinary unit following this search. Compl.

19 at 5, 9. Because he alleges no facts that could establish that these three officers played any

20 role in denying his medical care, he fails to state an inadequate medical care claim against

21 them. See Russell, 31 F.4th at 739 (holding that a defendant must make an intentional

22 decision with respect to plaintiff’s health in order to be liable for denying medical care).

23 Second, while Plaintiff makes allegations against Sgt. Renick and Nurse Aquero related to

24 his medical treatment, he does not allege any facts that show that their conduct put him in

25 danger. Plaintiff’s only medically-related allegation against Renick is that he summoned

26 medical staff when he saw Plaintiff suffering an asthma attack. Without more, this

27 allegation does not establish that Renick’s reaction was wrongful or insufficient, or that he

28 otherwise placed Plaintiff at medical risk. See Gordon, 888 F.3d at 1125 (noting that

1 inadequate medical care claims require conduct “akin to reckless disregard”). Similarly,

2 with respect to Nurse Aquero, Plaintiff’s only allegation is that she “had his inhaler” when

3 he suffered his asthma attack; as a result, the medical staff was not able to stop the attack

4 by giving him an inhaler. Again, this single allegation is insufficient to create an inference

5 that Nurse Aquero intentionally retained his inhaler or that she did so in reckless disregard

6 of the possibility that Plaintiff would need it. See id. Because nothing in Plaintiff’s

7 pleadings suggests that these Defendants actions placed him at substantial risk of serious

8 medical harm, the Court finds Plaintiff has not plausibly alleged an inadequate medical

9 care claim against Defendants Renick, Lizarraga, Paredes, Kerns, or Arquero. See Iqbal,

10 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by

11 mere conclusory statements,” are insufficient to state a claim).

12 B. Excessive Force Claim

13 The Court next examines whether Plaintiff has pled sufficient facts to establish that

14 Deputies Kerns and Paredes used excessive force while handcuffing him. “[T]he Due

15 Process Clause protects a pretrial detainee from the use of excessive force that amounts to

16 punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Use of force during

17 pretrial detention is unconstitutionally excessive if it is “objectively unreasonable,” and

18 turns on the “facts and circumstances of each particular case.” Id. (quoting Graham v.

19 Connor, 490 U.S. 386, 396 (1989)). “Not every push or shove, even if it may later seem

20 unnecessary in the peace of a judge’s chambers,” violates the Constitution. Graham, 490

21 U.S. at 396. The Ninth Circuit considers several factors in determining whether a use of

22 force was objectively unreasonable: “the relationship between the need for the use of force

23 and the amount of force used; the extent of the plaintiff’s injury; any effort made by the

24 officer to temper or to limit the amount of force; the severity of the security problem at

25 issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively

26 resisting.” Kingsley, 576 U.S. at 397; see also Hyde v. City of Willcox, 23 F.4th 863, 870

27 (9th Cir. 2022).

28 Here, Plaintiff has not pled facts which demonstrate that Officers Kerns and

1 Paredes’s use of force was objectively unreasonable. In his complaint, Plaintiff relies

2 solely on the conclusory allegation that Deputy Kerns and Paredes cuffed him “so tight to

3 cut off blood flow.” Compl. at 5. However, he omits any additional facts such as how

4 long he was handcuffed or whether he suffered any injury as a result. Moreover, his

5 pleading does not include any information about the circumstances surrounding the

6 handcuffing, such as whether he was resisting or otherwise posed a security threat.

7 Because of this, Plaintiff has not pled enough facts from which the Court can determine if

8 Paredes and Kerns’s actions were, in context, objectively unreasonable. He has therefore

9 failed to state a claim for excessive force. See Iqbal, 556 U.S. at 678; Kingsley, 576 U.S.

10 at 397.

11 C. Monell Claim Against San Diego County Sheriff’s Department

12 Lastly, because Plaintiff’s complaint only focuses on the actions of individual

13 officers and nurses, he fails to plausible allege that the San Diego Sheriff’s Department is

14 liable as a municipality. Because there is no respondeat superior liability under section

15 1983 law, “a municipality cannot be held liable solely because it employs a tortfeasor.”

16 Monell v. Dept. of Social Servs., 436 U.S. 658, 691 (1978). Instead, “a plaintiff must go

17 beyond the respondeat superior theory of liability and demonstrate that the alleged

18 constitutional deprivation was the product of a policy or custom of the local governmental

19 unit.” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 793 (9th Cir. 2016) (citing Connick

20 v. Thompson, 563 U.S. 51, 60 (2011)); see also City of Canton v. Harris, 489 U.S. 378,

21 385 (1989) (holding that a Monell plaintiff must show “a direct causal link between a

22 municipal policy or custom and the alleged constitutional deprivation”). “An

23 unconstitutional policy need not be formal or written to create municipal liability under

24 section 1983; however, it must be ‘so permanent and well settled as to constitute a “custom

25 or usage” with the force of law.’” Gordon v. Cnty. of Orange, 6 F.4th 961, 974 (9th Cir.

26 2021) (internal citations omitted). Allegations of random acts, or single instances of

27 misconduct are insufficient to establish a municipal custom. Id.

28

1 Plaintiff’s complaint fails to state a claim for relief against SDSD because he alleges

2 no Sheriff’s Department policy or well-settled custom which caused him injury. He posits

3 that individual Sheriff’s Department employees violated his constitutional rights by failing

4 to adequately respond to his medical needs and by handcuffing him too tightly but omits

5 any factual allegations to suggest any individual SDSD employee acted pursuant to a

6 municipal custom, policy, or practice. See Compl. at 2‒5. Because Plaintiff has not

7 alleged that any Sheriff’s Department custom, policy, or practice played a role in his

8 injuries, his municipal liability claim fails. See Monell, 436 U.S. at 694.

9 D. Leave to Amend

10 While Plaintiff has sufficiently alleged a Fourteenth Amendment inadequate medical

11 care claim against Deputy Newlan, he has not alleged any plausible claim for relief against

12 the San Diego County Sheriff’s Department, Sgt. Renick, Lt. Lizarraga, Deputies Paredes

13 or Kerns, or Nurse Arquero. In light of Plaintiff’s pro se status, the Court grants him leave

14 to amend his Complaint to attempt to sufficiently allege a Fourteenth Amendment

15 inadequate medical care claim against Renick, Lizarraga, Paredes, Kerns, Arquero, and

16 SDSD, as well as a Fourteenth Amendment excessive force claim against Paredes, Kerns,

17 and SDSD. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court

18 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.

19 § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies of the complaint could

20 not be cured by amendment.”).

21 V. CONCLUSION

22 For the reasons discussed above, the Court:

23 1. GRANTS Plaintiff’s Motion to Proceed IFP. Dkt. 2.

24 2. ORDERS the Facility Commander of GBDF, her designee, or any agency

25 later having custody, to collect from Plaintiff’s trust account the $405 filing fee owed by

26 collecting monthly payments in an amount equal to twenty percent (20%) of the preceding

27 month’s income and to forward payments to the Clerk of the Court each time the amount

28 in Plaintiff’s account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL

1 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

2 ASSIGNED TO THIS ACTION.

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

4 on Christina Ralph, Commander, San Diego County Sheriff’s Department Detention

5 Services Bureau, John F. Duffy Administrative Center, PO Box 939062, San Diego, CA

6 92193-9062.

7 4. DISMISSES all claims alleged against Defendants Renick, Lizarraga,

8 Paredes, Kerns, Arquero, and San Diego Sheriff’s Department pursuant to 28 U.S.C.

9 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

10 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

11 which to file either (i) a Notice of Intent to proceed with his Fourteenth Amendment

12 medical care claim against Deputy Newlan only; or (ii) an Amended Complaint which

13 cures the deficiencies of pleading noted in this Order.1 Plaintiff’s Amended Complaint

14 must be complete by itself without reference to his original Complaint. Any Defendants

15 not named and any claims not re-alleged in the Amended Complaint will be considered

16 waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,

17 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”);

18 Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed

19 with leave to amend which are not re-alleged in an amended pleading may be “considered

20 waived if not repled”).

21 Should Plaintiff fail to either file an Amended Complaint or a Notice of Intent to

22 proceed with only his claims as alleged against Deputy Newlan within 45 days, his case

23 will be dismissed based on his failure to prosecute in compliance with this Order. See

24 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff

25

26

27 1 Plaintiff’s Amended Complaint will be subject to another preliminary screening pursuant to 28 U.S.C.

§§ 1915(e)(2) and 1915A(b) before the Court determines whether U.S. Marshal Service upon any

28

1 |}eventually to respond to the court’s ultimatum—either by amending the complaint or by

2 || indicating to the court that [he] will not do so—is properly met with the sanction of a Rule

3 ||41(b) dismissal.’’).

4 IT IS SO ORDERED.

5 ||Dated: February 29, 2024 Qe

6

7 Hon. Jinsook Ohta

8 United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11 ee □□