Opinion
CASE NO. 3:19-cv-06171-RBL-JRC
06-25-2020
KEVIN A. MURPHY, Plaintiff, v. D. RICCI, Defendant.
REPORT AND RECOMMENDATION NOTED FOR: JULY 10, 2020
This 42 U.S.C. § 1983 civil rights matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4. See also Dkt. 2. Before the Court is defendant Ricci's motion to dismiss. See Dkt. 20.
Plaintiff brought suit against defendant Ricci for deliberate indifference in violation of the Fourteenth Amendment when defendant Ricci allegedly refused to provide plaintiff with necessary mental health treatment. See Dkt. 5. Plaintiff has not plausibly alleged that defendant Ricci made an intentional decision regarding the conditions of plaintiff's confinement, nor has plaintiff alleged how defendant Ricci's alleged conduct caused any injury to plaintiff. Because plaintiff has not plausibly alleged a constitutional violation, his claim against defendant Ricci in her official capacity also fails. The motion to dismiss should be granted, and the claims against defendant Ricci should be dismissed with prejudice.
BACKGROUND
Plaintiff, who is a pretrial detainee housed at Pierce County Jail and is proceeding pro see and in forma pauperis, initiated this matter in December 2019. See Dkts. 1, 4. In his complaint, plaintiff alleges claims against defendant Ricci in her individual and official capacity, asserting that she failed to respond to his inmate kite requests for mental health treatment for paranoid schizophrenia and manic depression. See Dkt. 5. Specifically, plaintiff alleges that on October 1, 2019, he requested mental health treatment, defendant Ricci responded to his request, but no treatment was provided. See Dkt. 5, at 4. Plaintiff also alleges that there is a blanket policy at Pierce County Jail for refusing mental health treatment to pretrial detainees. See Dkt. 5, at 6. Plaintiff requests injunctive relief and damages. See Dkt. 5, at 7-8.
In his complaint, plaintiff also brought claims against defendants Pastor, Conception, Nealis, Perez, and Anderson. See Dkt. 5. On March 12, 2020, these defendants filed a motion to dismiss (Dkt. 21), which the district court granted, and plaintiff's claims against these defendants were dismissed with prejudice and without leave to amend on June 5, 2020. See Dkts. 25, 29.
Separately, defendant Ricci filed her motion to dismiss on March 12, 2020. See Dkt. 20. On May 5, 2020, the Court re-noted defendant Ricci's motion to dismiss and directed her to file a notice of dispositive motion required by Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012). See Dkt. 26. On May 6, 2020, defendant Ricci filed the required notice. See Dkt. 27. Plaintiff did not file a response, and the matter is ripe for review.
DISCUSSION
I. Motion to Dismiss and Deliberate Indifference Standards
To state a claim upon which relief may be granted, a complaint must go beyond "unadorned, the-defendant-unlawfully-harmed-me" accusations and "'a formulaic recitation of the elements of a cause of action.'" Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain factual allegations to state a claim to relief that is "'plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 570). Finally, although the Court will liberally construe a pro se complaint, the Court will not supply essential elements of a cause of action that a plaintiff has not pleaded. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
To prevail on a claim of deliberate indifference, a pretrial detainee must show
(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). This requires showing something "more than negligence but less than subjective intent—something akin to reckless disregard." Id.
(2) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved; and
(4) By not taking such measures, the defendant caused the plaintiff's injuries.
II. Individual Capacity Claim
Here, plaintiff's factual allegations that he suffers from mental conditions and that he sent defendant Ricci a medical kite for medical treatment but received "no treatment" (Dkt. 5, at 4) are insufficient to state a claim of deliberate indifference that is plausible on its face based on the principles explained above. Where, as here, plaintiff seeks damages from an individual defendant in her personal capacity under 42 U.S.C §1983, plaintiff must allege particular facts that show how the individual defendant personally participated in the alleged constitutional deprivations at issue. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Fatal to his claims, however, plaintiff does not explain how defendant Ricci made any intentional or reckless decision with respect to the conditions of plaintiff's confinement or that defendant Ricci's failure to act caused plaintiff any particular injury. Plaintiff's factual allegations are insufficient to show that his claims are actionable. See Iqbal, 556 U.S. at 680.
III. Official Capacity Claim
Plaintiff also asserts a claim against defendant Ricci in her official capacity. See Dkt. 5, at 2. A claim against a municipal employee in her official capacity is essentially a claim against the municipal entity—here, Pierce County. Sherman v. Cty. of Maui, 191 Fed. App'x 535, 537 (9th Cir. 2006), cited in Brandon v. Holt, 469 U.S. 464, 471-72 (1985).
In her motion to dismiss, defendant Ricci asserts that she is a medical provider employed by a Pierce County contractor, and that it is not within the scope of her employment to provide mental health treatment at the Pierce County Jail. See Dkt. 20, at 5. These facts are outside of plaintiff's complaint, and the Court now excludes them in its analysis of the instant motion to dismiss. See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.").
A municipality may be held liable under 42 U.S.C. § 1983 when execution of a government's policy or custom inflicts injury on a plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). In order to establish a 42 U.S.C. § 1983 claim against a municipal entity (or against a municipal employee in her official capacity), a plaintiff must show that (1) he was deprived of a constitutional right, (2) the municipal entity had a custom or policy, (3) the custom or policy amounted to a deliberate indifference to the plaintiff's constitutional right, and (4) the custom or policy was the moving force behind the constitutional violation. Burke v. Cnty. of Alameda, 586 F.3d 725, 734 (9th Cir. 2009) (citing Mabe v. San Bernadino Cnty,, 237 F.3d 1101, 1101-11 (9th Cir. 2001)).
As discussed above, plaintiff fails to allege that defendant Ricci was deliberately indifferent to plaintiff's serious medical needs in violation of the Fourteenth Amendment. Thus, plaintiff fails to show that he was deprived of a constitutional right. See Aguilera v. Baca, 510 F.3d 1161, 1174 (9th Cir. 2007) (citing Monell, 436 U.S. 658) (noting that if no constitutional violation has occurred, the court need not consider a claim against a municipal entity under 42 U.S.C. § 1983). Further, plaintiff fails to allege how defendant Ricci, in her official capacity, acted through a municipal custom or policy that violates plaintiff's civil rights. See Monell, 436 U.S. at 690-91.
Because plaintiff fails to show a deprivation of a constitutional right or that defendant Ricci acted through a municipal custom or policy, even if interpreting his claim against defendant Ricci in her official capacity as a claim against the municipality, plaintiff has failed to allege a cognizable claim against Pierce County under 42 U.S.C. § 1983. See id. Accordingly, plaintiff's claim against defendant Ricci in her official capacity should be dismissed with prejudice.
IV. In Forma Pauperis Status
Regarding plaintiff's in forma pauperis status should plaintiff appeal, as noted, plaintiff's complaint fails to provide any claim upon which relief could be granted. In forma pauperis status on appeal shall not be granted if the district court certifies "before or after the notice of appeal is filed" "that the appeal is not taken in good faith[.]" Fed. R. App. P. 24(a)(3)(A ); see also 28 U.S.C. § 1915(a)(3). A plaintiff satisfies the "good faith" requirement if he seeks review of an issue that is "not frivolous," and an appeal is frivolous where it lacks any arguable basis in law or fact. Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977); Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because appeal of these issues would lack an arguable basis in law, the district court should find that any appeal would not be taken in good faith.
CONCLUSION
For the reasons set forth above, the Court recommends granting defendant Ricci's motion to dismiss (see Dkt. 21) and that all claims against defendant Ricci should be dismissed with prejudice and without leave to amend. The Court further recommends that plaintiff's in forma pauperis status should be revoked for the purpose of any appeal.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted).
Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on July 10, 2020, as noted in the caption.
Dated this 25th day of June, 2020.
/s/_________
J. Richard Creatura
United States Magistrate Judge