Opinion
CV 23-08063-PCT-JAT (DMF)
05-25-2023
Jason Allen Campbell, Plaintiff, v. Wexford Health Source Inc., et al., Defendants.
ORDER
James A. Teilborg Senior United States District Judge
Plaintiff Jason Allen Campbell, who is confined in the Mohave County Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
III. Complaint
In his three-count Complaint, Plaintiff alleges claims for denial of constitutionally adequate medical care, violation of mail rights, and retaliation. Plaintiff sues Wexford Health Sources, Inc. (“Wexford”), one of its providers, Jane Lekeanjia, and “Mohave County Detention.” Plaintiff seeks injunctive and compensatory relief.
Plaintiff designates Count I as a claim for denial of constitutionally adequate medical care. Plaintiff alleges the following:
Plaintiff has been confined in the Mohave County Detention Facility since March 4, 2021. During that time, Plaintiff's health has deteriorated. Plaintiff has repeatedly sought medical care. When Plaintiff arrived at the facility, he weighed 218 pounds. Plaintiff's weight since has been as low as 171 pounds, and the last time he was weighed, it was 181 pounds. According to Plaintiff, his kidneys, stomach, and heart make it difficult for him to inhale full breaths. Plaintiff has “done everything,” including exhausting the grievance process. Plaintiff contends that something is not right at the facility and Wexford. Plaintiff's stomach is constantly in pain, as are his kidneys. Plaintiff entered the facility disabled and handicapped with “prior health concerns.”
Plaintiff designates Count II as a claim concerning mail. He alleges the following:
Since Plaintiff has been in the jail, he has had mail sent to a social security office that did not arrive. After Plaintiff filed a grievance, he was told that the jail was not responsible for mail after it left the jail. In a second grievance, Plaintiff stated that he wanted to talk to social security and the postmaster but his request was denied. Plaintiff thinks the jail and the federal government are in a conspiracy against him. He claims that he knows that certain mail has not made it to the courts and that he is fighting for his life.
Plaintiff designates Count III as a claim for retaliation. He alleges the following:
Plaintiff claims that the “Sheriff” is retaliating against him out of hatred. When Plaintiff arrived-shortly after a detention officer rushed him while his back was turned at the top of a flight of stairs and sprayed Plaintiff when he tried to defend himself-Plaintiff was locked in maximum custody and his health quickly deteriorated. His health has continued to deteriorate without medical care.
III. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 37172, 377 (1976).
A. Wexford
Plaintiff sues Wexford, a private entity contracted by Mohave County to provide medical care to Mohave County prisoners. To state a claim under § 1983 against a private entity performing a traditional public function, such as providing medical care to prisoners, a plaintiff must allege facts to support that his constitutional rights were violated as a result of a policy, decision, or custom promulgated or endorsed by the private entity. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (per curiam). A plaintiff must allege the specific policy or custom and how it violated his constitutional rights. A private entity is not liable merely because it employs persons who allegedly violated a plaintiff's constitutional rights. See Tsao, 698 F.3d at 1139; Buckner, 116 F.3d at 452.
Plaintiff mentions Wexford, but he fails to allege facts to support that his constitutional rights were violated as the result of a policy, decision, or custom or to allege what that policy, decision, or custom was. Accordingly, Plaintiff fails to state a claim against Wexford and it will be dismissed. ....
B. Lekeanjia
Plaintiff also sues Defendant Lekeanjia. However, Plaintiff fails to allege any facts to support when, where, or how Lekeanjia violated his constitutional rights. Indeed, Plaintiff fails to allege any facts against her. Accordingly, Plaintiff fails to state a claim against her, and she will be dismissed.
C. Mohave County Detention Center
Plaintiff also names the Mohave County Detention Center as a Defendant; however, it is not a proper defendant. Section 1983 imposes liability on any “person” who violates an individual's federal rights while acting under color of state law. Congress intended municipalities and other local government units to be included among those persons to whom § 1983 applies. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 689-90 (1978). However, the Mohave County Detention Center is a building or collection of buildings, not a person or legally created entity capable of being sued. Thus, the Court will dismiss Defendant Mohave County Detention Center.
D. Medical Care
In Count I Plaintiff alleges a claim for denial of constitutionally adequate medical care. The Ninth Circuit Court of Appeals has held that “claims for violations of the right to adequate medical care ‘brought by pretrial detainees against individual defendants under the Fourteenth Amendment' must be evaluated under an objective deliberate indifference standard.” Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016)). To state a medical care claim, a pretrial detainee must show
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.Id. at 1125. “With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each particular case.'” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)).
The “‘mere lack of due care by a state official' does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more than negligence but less than subjective intent-something akin to reckless disregard.” Id. A mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
Plaintiff generally alleges that he has lost weight since 2021, and has kidney, stomach, and heart issues. Plaintiff does not, however, describe his symptoms and their severity, nor does he describe any medical conditions he suffered from when he arrived at the jail. Plaintiff does not allege when and how he sought medical evaluation of his symptoms, or from whom; whether and when he was seen by any medical provider; or whether any tests were performed, or diagnosis given. Plaintiff fails to allege facts to support that any properly named Defendant acted with reckless disregard to Plaintiff's reported symptoms. Accordingly, Plaintiff fails to state a claim for denial of constitutionally adequate medical care and Count I will be dismissed.
E. Mail
In Count II, Plaintiff asserts a violation of his mail rights. Generally, a prisoner retains First Amendment rights not inconsistent with his status as a prisoner and with legitimate penological objectives of the corrections system. See Shaw v. Murphy, 532 U.S. 223, 231 (2001); Clement, 364 F.3d at 1151. This includes the First Amendment right to send and receive mail. Witherow v. Paff 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). However, jail officials may intercept and censor outgoing mail containing escape plans, proposed criminal activity, or encoded messages, Procunier v. Martinez, 416 U.S. 396, 413 (1974), and may screen outgoing mail for contraband, O'Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996); Walker v. Navarro Cty. Jail, 4 F.3d 410, 413 (5th Cir. 1993); Martin v. Tyson, 845 F.2d 1451, 1456-57 (7th Cir. 1988); Murray v. Edwards Cty. Sheriff's Dep't, 453 F.Supp.2d 1280, 1294 (D. Kan. 2006). Jail officials may also withhold incoming mail pursuant to jail regulations that are reasonably related to legitimate detention concerns. See Valdez v. Rosenbaum, 302 F.3d 1039, 1048-49 (9th Cir. 2002). Thus, to state a claim, a prisoner must allege facts to support that his mail was withheld absent a legitimate penological purpose. Dennison v. Ryan, No. 12-15609, 522 Fed. App'x 414, 418 (9th Cir. Apr. 9, 2013) (citing Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008)).
Plaintiff alleges that a letter he sent to “social security” never arrived. Plaintiff alleges no facts to support that the letter was properly addressed and bore sufficient postage, or any facts to support that any jail staff failed to transfer it to the United States Postal Service for delivery. Indeed, Plaintiff fails to include any allegations in Count II regarding any properly named Defendant. Further, Plaintiff does not explain how the refusal of jail officials to allow Plaintiff to call the postmaster or the Social Security Administration impaired his right to send and receive mail. Count II will be dismissed for failure to state a claim.
F. Retaliation
Plaintiff designates Count III as a claim for retaliation. A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claim requires an inmate to show (1) that the prison official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action “advanced no legitimate penological interest”). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).
Plaintiff fails to allege facts to support that any properly named Defendant retaliated against Plaintiff for engaging in constitutionally protected conduct. Instead, Plaintiff appears to allege someone may have used excessive force or subjected him to a threat to his safety. Plaintiff fails to name that person as a defendant, allege when the incident occurred, and allege the circumstances involved. Count III will be dismissed for failure to state a claim.
IV. Leave to Amend
For the foregoing reasons, the Court will dismiss Plaintiff's Complaint for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the “First Amended Complaint.” The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
V. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Possible “Strike”
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
D. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court). ....
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot.
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.