“If a plaintiff does not take advantage of 16 opportunity to fix his complaint, a district court may convert the dismissal of the 17 complaint into dismissal of the entire action.”
How later courts described this case
- “If a plaintiff does not take advantage of 16 opportunity to fix his complaint, a district court may convert the dismissal of the 17 complaint into dismissal of the entire action.”
- noting that 9 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading 10 || may be “considered waived if not repled.”
- noting that § 1915A screening “incorporates the familiar standard applied in the 17 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”
- “[A]n amended pleading supersedes the 8 |/original.’”’
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 DANTEA COOPER, Case No.: 24-cv-01585-WQH-SBC
CDCR #BT-9633,
12
ORDER GRANTING PLAINTIFF
Plaintiff,
13 LEAVE TO PROCEED IN FORMA
vs. PAUPERIS AND DISMISSING
14
COMPLAINT FOR FAILING TO
Dr. NICHOLAS,
15 STATE A CLAIM PURSUANT
Defendant. TO 28 U.S.C. § 1915(e)(2)(B)(ii)
16
AND 28 U.S.C. § 1915A(b)(1)
17
[ECF Nos. 2, 3]
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19 HAYES, Judge:
20 Before the Court is a civil rights complaint filed pursuant to 42 U.S.C. § 1983 by
21 Plaintiff Dantea Cooper, a prisoner at Calipatria State Prison (“CAL”), who is proceeding
22 without counsel. (ECF No. 1.) Plaintiff seeks $10,000 in punitive damages from a physician
23 who he claims provided inadequate medical care during his pretrial detention in the San
24 Diego County Jail. (Id. at 2‒3, 7, 8.)
25 Plaintiff has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to commence
26 a civil action, but instead has filed a Trust Account Withdrawal Authorization and certified
27 copies of his prison trust account statement which the Court together construes as a request
28 to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Nos. 2, 3).
1 For the reasons explained, the Court GRANTS Plaintiff leave to proceed IFP, but
2 DISMISSES his Complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
3 1915A(b)(1) because it fails to state a claim upon which relief may be granted.
4 I. LEAVE TO PROCEED IFP
5 All parties instituting any civil action, suit or proceeding in a district court of the
6 United States, except an application for writ of habeas corpus, must pay a filing fee.1 See
7 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at the
8 time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant to 28
9 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf.
10 Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP
11 application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s]
12 [a]re paid.”).
13 “While the previous version of the IFP statute granted courts the authority to waive
14 fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act]
15 amended the IFP statute to include a carve-out for prisoners: under the current version of
16 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the
17 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767
18 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for
19 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)–(2)).
20 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of
21 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account
22 statement (or institutional equivalent) for … the 6-month period immediately preceding the
23 filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 1119
24 (9th Cir. 2005). Using this financial information, the court “shall assess and when funds
25
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1 In addition to the $350 statutory fee, civil litigants filing suit are required to pay an additional
27 administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The administrative portion of the fee does not apply to
28
1 exist, collect, … an initial partial filing fee,” which is “calculated based on ‘the average
2 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the
3 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly
4 payments of 20 percent of the preceding month’s income credited to the prisoner’s
5 account.’” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). Thus, while
6 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one
7 lump sum, they nevertheless remain obligated to pay the full amount due in monthly
8 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1)–(2);
9 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
10 Plaintiff has submitted a signed trust account withdrawal authorization, together
11 with copies of his CDCR Inmate Statement Report and a prison certificate issued by a CAL
12 Accounting Supervisor attesting to his income and assets. (ECF Nos. 2, 3.) See also S.D.
13 Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show Plaintiff maintained
14 an average monthly balance of $8.21 and had the same average monthly deposits credited
15 to his account over the 6-month period immediately preceding the filing of his Complaint.
16 At the time of filing, however, Plaintiff’s available balance was only $0.15. (ECF No. 3 at
17 1.)
18 Based on this accounting, the Court GRANTS Plaintiff leave to proceed IFP and
19 assesses an initial partial filing fee of $1.64 pursuant to 28 U.S.C. § 1915(b)(1). However,
20 this initial fee need be collected only if sufficient funds are available in Plaintiff’s account
21 at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event
22 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or
23 criminal judgment for the reason that the prisoner has no assets and no means by which to
24 pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
25 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
26 solely on “failure to pay ... due to the lack of funds available to him when payment is
27 ordered.”). Pursuant to 28 U.S.C. § 1915(b)(2), the CDCR or any agency later having
28 custody must forward payments to the Clerk until the $350 statutory fee is paid in full.
1 II. SCREENING
2 A. Standard of Review
3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a
4 preliminary screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these
5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion found
6 frivolous, malicious, failing to state a claim, or seeking damages from defendants who are
7 immune. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc) (discussing
8 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
9 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is to ‘ensure that the
10 targets of frivolous and malicious suits need not bear the expense of responding.’”
11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
12 “The standard for determining whether a plaintiff has failed to state a claim upon
13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
16 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
17 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”).
18 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain
19 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
20 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
21 omitted); Wilhelm, 680 F.3d at 1121. A complaint fails to state a claim if it lacks a
22 “cognizable legal theory” or “sufficient facts … to support a cognizable legal theory.”
23 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)
24 (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). Detailed factual allegations
25 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported
26 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. And while the court
27 “ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to
28 construe the pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe
1 v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026,
2 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not
3 initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
4 1982).
5 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
6 acting under color of state law, violate federal constitutional or statutory rights.”
7 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a
8 source of substantive rights, but merely provides a method for vindicating federal rights
9 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quote
10 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation
11 of a right secured by the Constitution and laws of the United States, and (2) that the
12 deprivation was committed by a person acting under color of state law.” Tsao v. Desert
13 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
14 B. Factual Allegations
15 Plaintiff alleges that while he was held in the San Diego Central Jail awaiting trial
16 in February 2023, he made several complaints to unidentified nurses about “flexing chest
17 pain.” (ECF No. 1 at 3.) Met with “dismissive reactions from medical staff,” Plaintiff, who
18 is diabetic, claims he also reported dizziness and “made it clear that the pain only
19 happen[ed]” when he was “eat[ing] carbs,” and mainly … at night.” (Id.)2 After what
20 Plaintiff defines as an “unreasonable delay,” Dr. Nicholas “performed an EKG with alleged
21 normal results.” (Id.) During the EKG, Plaintiff also alleges an infection was discovered
22 below his armpit. A nurse drained the wound, and he was prescribed antibiotics, but Dr.
23 Nicholas “reacted as if [he] were dealing with a paper cut,” and “saw no cause for alarm.”
24
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2 Plaintiff attached to his Complaint several exhibits comprised of what appear to be excerpts of his
26 medical records, including a “Release Summary” of medical treatment he received while he was held in
County custody, see ECF No. 1-2 at 11‒13, and more recent CAL Medical Assessments, Medication
27 Administrative Records, Progress Notes, Health Care Services Request Forms, and Reasonable
Accommodation Request Forms. (See ECF Nos. 4, 5.) “A copy of a written instrument that is an exhibit
28
1 (Id. at 3–4.)
2 Four months later, after Plaintiff arrived at CAL in June 2023, he claims to have
3 discovered “educational material” indicating his February 2023 symptoms were potentially
4 signs of a mild heart attack. (Id. at 5.) He now seeks to hold Dr. Nicholas liable for failing
5 to conduct “in depth test[s],” x-rays, an MRI, and to prescribe a blood thinner. (Id. at 6.)
6 In a declaration dated October 4, 2024, two months after Plaintiff signed the
7 Complaint (see ECF No. 1 at 8), Plaintiff also asserts that Dr. Nicholas “offered to give
8 [him] insulin as a treatment to diabetes” when Plaintiff’s blood “sugars were averaging
9 160,” despite insulin allegedly being “linked to dead man syndrome, or diabetics dying in
10 [their] sleep because the sugar level gets too low.” (ECF No. 6 at 1.) Plaintiff asserts that
11 this further demonstrates Dr. Nicholas’s alleged “mal-intent and deliberate indifferen[ce].”
12 (Id. at 2.)
13 C. Discussion
14 Plaintiff claims both his Eighth and Fourteenth Amendment right to medical care
15 were violated by what he describes as Dr. Nicholas’s “callous and Marquis de Sade sadistic
16 dismiss[al] of [his] complaints.” (ECF No. 1 at 3, 6.) Because he alleges he was housed in
17 San Diego County Jail while awaiting trial at the time of his alleged injury, however, the
18 Due Process Clause of the Fourteenth Amendment rather than the Cruel and Unusual
19 Punishments Clause of the Eighth Amendment governs the Court’s analysis. See Bell v.
20 Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting that the Due Process Clause of the
21 Fourteenth Amendment is applicable to claims of pre-trial detainees rather than the Eighth
22 Amendment because “Eighth Amendment scrutiny is appropriate only after the State has
23 complied with the constitutional guarantees traditionally associated with criminal
24 prosecutions.”); see also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir.
25 2016) (“Eighth Amendment protections apply only once a prisoner has been convicted of
26 a crime, while pretrial detainees are entitled to the potentially more expansive protections
27 of the Due Process Clause of the Fourteenth Amendment.”).
28 An objective standard applies to constitutional claims of inadequate medical care
1 brought under the Fourteenth Amendment. Gordon v. County of Orange, 888 F.3d 1118,
2 1124‒25 (9th Cir. 2018). A plaintiff must allege:
3 (1) The defendant made an intentional decision with respect to the conditions
under which the plaintiff was confined [including a decision with respect to
4
medical treatment]; (2) Those conditions put the plaintiff at substantial risk of
5 suffering serious harm; (3) The defendant did not take reasonable available
measures to abate that risk, even though a reasonable official in the
6
circumstances would have appreciated the high degree of risk involved –
7 making the consequences of the defendant’s conduct obvious; and (4) By not
taking such measures, the defendant caused the plaintiff’s injuries.
8
Sandoval v. County of San Diego, 985 F.3d 657, 669 (9th Cir. 2021) (citing Gordon, 888
9
F.3d at 1125). To satisfy the third element, the plaintiff must show that the defendant’s
10
actions were “objectively unreasonable,” which requires showing “more than negligence
11
but less than subjective intent – something akin to reckless disregard.” Gordon, 888 F.3d
12
at 1125 (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)).
13
Objective reasonableness necessarily “turn[s] on the facts and circumstances of each
14
particular case.” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). Still,
15
“[t]he ‘reckless disregard’ standard is a formidable one.” Fraihat v. U.S. Immigr. &
16
Customs Enf’t, 16 F.4th 613, 636 (9th Cir. 2021) (citation omitted).
17
The Court finds nothing in Plaintiff’s description of Dr. Nicholas’s February 2023
18
response to his complaints of chest pain nor in the treatment of his infection to plausibly
19
suggest Nicholas made any intentional decisions that put Plaintiff at “substantial risk of
20
suffering serious harm” while he was in pretrial custody. Gordon, 888 F.3d at 1125.
21
Instead, Plaintiff admits Nicholas took reasonable available measures to abate the risk of a
22
potential heart attack by performing an EKG in response to his complaints of “flexing chest
23
pain” and his reports of “light[-]headed dizziness.” (ECF No. 1 at 3.) Plaintiff reports an
24
“unreasonable delay” in Nicholas’s authorization of the EKG, but he fails to allege any
25
injury as a result of the allegedly deferred diagnostic testing—in fact, he acknowledges the
26
EKG showed “normal results.” (Id.) A mere delay in receiving medical treatment, without
27
more, does not constitute “deliberate indifference,” unless the plaintiff can show that the
28
1 delay caused serious harm. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990);
2 see also Cravotta v. County of Sacramento, 717 F. Supp. 3d 941, 955 (E.D. Cal. 2024)
3 (“[A] delay in receiving medical care, without more, is insufficient to state a claim against
4 a jailor for deliberate indifference unless the plaintiff can show that the delay in treatment
5 harmed him.”) (citation omitted).
6 Further, while Plaintiff claims an infection under his arm was discovered while Dr.
7 Nicholas conducted the EKG, he does not allege to have made any prior complaints to Dr.
8 Nicholas regarding infection. He also concedes an unidentified nurse treated his wound
9 and that he was prescribed antibiotics after its discovery. (ECF No. 1 at 3.) These
10 allegations altogether fail to plausibly show Dr. Nicholas’s course of treatment was
11 “objectively unreasonable.” Gordon, 888 F.3d at 1125.
12 Even if the Court were to liberally construe Plaintiff’s later-filed Declaration (ECF
13 No. 6) as part of the Complaint, its contents would not change the Court’s analysis. Plaintiff
14 asserts that Dr. Nicholas “offered to give [him] insulin as a treatment to diabetes” when
15 Plaintiff’s blood “sugars were averaging 160,” despite insulin allegedly being “linked to
16 dead man syndrome, or diabetics dying in [their] sleep because the sugar level gets too
17 low.” (Id. at 1.) These assertions do not adequately allege that Dr. Nicholas’s actions were
18 “objectively unreasonable” or put Plaintiff at “substantial risk of suffering serious harm”
19 while he was in pretrial custody. Gordon, 888 F.3d at 1125.
20 In fact, while Plaintiff summarily characterizes Dr. Nicholas’s course of care as
21 “dismissive” and “callous” in his Complaint, the Release Summary he attaches as an
22 exhibit, comprised of excerpts of his medical complaints and treatment dispositions while
23 he was in County custody from September 2022 through April 2023, shows he was treated
24 no fewer than eleven times for various complaints and ailments, including uncontrolled
25 diabetes (for which he refused insulin and blood draws), a yellow toenail, bugs in his beard,
26 weight loss, prescription eye glasses, and dry lips. (See ECF No. 1 at 4; cf. ECF No. 1-2 at
27 11‒13.) When determining whether a complaint states a claim upon which relief can be
28 granted, a court is not “required to accept as true allegations that contradict exhibits
1 attached to the Complaint[,] matters properly subject to judicial notice, or allegations that
2 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”
3 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Iqbal, 556 U.S. at
4 678.
5 For these reasons, the Court finds Plaintiff’s Complaint fails to state a claim upon
6 which relief can be granted and requires sua sponte dismissal pursuant to 28 U.S.C.
7 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d
8 at 1121; see also Hopper v. County of Riverside, No. 18-01277-JAK (DFM), 2018 WL
9 6092563, at *4 (C.D. Cal. Nov. 20, 2018) (sua sponte dismissing civil detainee’s claims
10 that medical official performed only a “perfunctory physical examination,” “declined to
11 order diagnostic tests,” and “disregarded complaints of pain” as insufficient to meet
12 Fourteenth Amendment’s objective deliberate indifference standards pursuant to 28 U.S.C.
13 § 1915(e)(2) and § 1915A).
14 III. CONCLUSION
15 Accordingly, the Court:
16 1. GRANTS Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(a)
17 (ECF Nos. 2, 3).
18 2. ORDERS the Secretary of the CDCR, or his designee, to collect from
19 Plaintiff’s trust account the $1.64 initial filing fee assessed, if those funds are available at
20 the time this Order is executed, and forward to the Clerk of the Court whatever balance
21 remains of the full $350 owed in monthly payments in an amount equal to twenty percent
22 (20%) of the preceding month’s income each time the amount in Plaintiff’s account
23 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY
24 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
25 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff
26 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via
27 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.
28 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
1 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b); and
2 5. GRANTS Plaintiff 45 days leave from the date of this Order in which to file
3 |}an Amended Complaint which cures the deficiencies of pleading noted. Plaintiffs
4 || Amended Complaint must be complete by itself without reference to his original pleading.
5 ||Defendants not named and any claim not re-alleged in the Amended Complaint will be
6 ||considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
7 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
8 |/original.’”’); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that
9 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading
10 || may be “considered waived if not repled.”).
11 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter
12 |/a final Order dismissing this civil action based both on his failure to state a claim upon
13 || which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his
14 || failure to prosecute in compliance with a court order requiring amendment. See Lira v.
15 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of
16 opportunity to fix his complaint, a district court may convert the dismissal of the
17 complaint into dismissal of the entire action.”).
18 IT IS SO ORDERED.
19 || Dated: November 18, 2024 Nitta Ze. A a
20 Hon, William Q. Hayes
1 United States District Court
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