Opinion
Case No.: 3:19-cv-00913-GPC-NLS
07-03-2019
LLOYD POWELL, CDCR #K-92698, Plaintiff, v. ADELITA BASTO, Registered Dietician; S. ROBERTS, Chief Medical Executive; M. GLYNN, Chief Medical Officer; S. GATES, Chief Health Care Correspondence & Appeals, Defendants.
ORDER:
1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
[ECF No. 2]
AND
2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § § 1915A(b)
Lloyd Powell ("Plaintiff"), proceeding pro se, is currently incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, and has filed this civil rights action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1.
Plaintiff claims a RJD dietician discontinued a hepatic diet he had been previously prescribed at Lancaster State Prison based on his chronic health issues and food allergies. He contends that the dietician, together with the medical doctors and inmate appeals officials who rejected his CDCR 602 Health Care Appeal, RJD HC Log No. 18002770, which he attaches as an exhibit and incorporates by reference, violated his "right to medical care." See id. at 2-3. He seeks $100,000 in damages, and demands jury trial. Id. at 7.
Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time of filing, but instead has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). He has since submitted additional exhibits from his CDCR medical file in support of his Complaint (ECF No. 5).
I. IFP Motion
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," Bruce, 136 S. Ct. at 629; Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id.
Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a "certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.
In support of his IFP Motion, Plaintiff has submitted certified copies of his CDCR Inmate Statement Report showing his trust account activity at the time of filing, as well as a Prison Certificate signed by a RJD Accounting Officer attesting as to his monthly balances and deposits. See ECF No. 3 at 1-3; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff had no monthly deposits to his account, maintained an average balance of $.03 in his account over the six month period preceding the filing of his current Complaint, and had an available balance of only $.17 to his credit at RJD as of May 15, 2019. See id.; 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay ... due to the lack of funds available to him when payment is ordered.").
Therefore, the Court grants Plaintiff's Motion to Proceed IFP (ECF No. 2), declines to exact any initial filing fee because his trust account statement shows he "has no means to pay it," Bruce, 136 S. Ct. at 629, and directs the Secretary of the CDCR to collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). See id. ///
II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
A. Standard of Review
Notwithstanding Plaintiff's IFP status or the payment of any partial filing fees, the PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing," and ideally before the service of process upon any Defendant. See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). "The purpose of § 1915[] is to 'ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
All complaints 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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "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. The "mere possibility of misconduct" falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").
While the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
"Courts must consider the complaint in its entirety," including "documents incorporated into the complaint by reference" to be part of the pleading when determining whether the plaintiff has stated a claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading for all purposes."); Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
B. Plaintiff's Allegations
On July 12, 2018, Plaintiff was evaluated by Defendant Basto, a registered dietician/nutritionist employed at RJD. See Compl. at 3. Plaintiff claims that because he suffers from congestive heart failure, hepatitis C, and is allergic to shellfish, eggs, and peanut butter, he had been prescribed a hepatic diet and was receiving dietary supplements "years prior" while he was incarcerated at a different institution. Id. After he was transferred to RJD, however, Basto prescribed him a "general population diet," which includes peanut butter and eggs, and for which he is "not being given a substitute." Id.
Plaintiff filed a CDCR 602 Health Care Appeal challenging Basto's decision to deny him a hepatic diet, and Defendant Roberts, RJD's Chief Medical Executive, M. Glynn, RJD's Chief Executive Officer, and S. Gates, the Chief of the Health Care Correspondence and Appeals Branch of California Correctional Health Care Services, "all deprived [him] of his rights," by rejecting that appeal "at all levels." Id.
"Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights." Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations omitted). "To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
D. Eighth Amendment Medical Care Claims
There is no question that prison officials act "under color of state law" when housing and providing medical care to prisoners. See West v. Atkins, 487 U.S. 42, 49-50 (1988) ("[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.").
Therefore, in order to determine whether Plaintiff has pleaded a plausible claim for relief against any named Defendant based on their alleged denials of his request for a hepatic diet, the Court must review Plaintiff's Complaint and decide whether it contains sufficient "factual content that allows [it] to draw the reasonable inference" that "each Government-official defendant, through the official's own individual actions, has violated the Constitution," and thus, may be held "liable for the misconduct alleged." Iqbal, 556 U.S. at 676, 678.
Only "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation and internal quotation marks omitted). "A determination of 'deliberate indifference' involves an examination of two elements: (1) the seriousness of the prisoner's medical need and (2) the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (quoting Estelle, 429 U.S. at 104).
"Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious.'" Hudson v. McMillian, 503 U.S. 1, 9 (1992), citing Estelle, 429 U.S. at 103-104. "A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). "The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a 'serious' need for medical treatment." McGuckin, 974 F.2d at 1059 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).
At the screening stage of these proceedings, the Court will assume that Plaintiff's "chronic health issues" including congestive heart failure and hepatitis C, are sufficient to show he suffers an objectively serious medical need. See Compl. at 3; McGuckin, 974 F.2d at 1059; Erickson v. Pardus, 551 U.S. 89, 94 (2007) (finding pro se prisoner's allegations of having been denied previously prescribed hepatitis C medication sufficient to satisfy Fed. R. Civ. P. 8(a)(2) pleading requirements); Ha v. Manasrah, No. 1:17-CV-01296-JLT-PC, 2018 WL 3203121, at *3 (E.D. Cal. June 28, 2018) (finding prisoner's allegations of "congestive heart failure, severely enlarged heart, and episodes of extreme breathing difficulties" sufficient to show a serious medical need). ///
However, even assuming Plaintiff's health conditions are sufficiently serious, his pleading fails to include any further "factual content" to show that any Defendant acted with "deliberate indifference" to those needs. McGuckin, 974 F.2d at 1060; Jett, 439 F.3d at 1096; Iqbal, 556 U.S. at 678. "Deliberate indifference is a high legal standard." Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citing Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)).
Specifically, while Plaintiff claims Basto refused to provide him the same hepatic diet or to provide the same dietary supplements he had been previously prescribed, see Compl. at 3, the medical records and CDCR 602 Health Care Appeal Log No. RJD HC 18002770 documentation he has attached as exhibits do not plausibly demonstrate deliberate indifference to his serious medical needs on any Defendant's part. Specifically, Plaintiff's appeal responses show that during his initial consultation on July 12, 2018, Basto "conducted a chart review" based on his medical records, and approved a "general population diet." See id. at 20. Basto also recommended Plaintiff limit his sodium intake, yet determined he "did not meet the criteria for a hepatic diet." Id. Based on their review of Basto's conclusion, together with Plaintiff's medical records, Defendants Roberts and Glynn affirmed Basto's assessments and denied Plaintiff's appeal at the institutional level of review. Id. at 21. When Plaintiff appealed to the Health Care Correspondence and Appeals Branch, Defendant Gates again affirmed the denial of CDCR 602 Log No. RJD HC 18002770, because Plaintiff had received a "primary care provider (PCP) evaluation and monitoring for [his] multiple health issues as determined medically necessary," and his PCP "did not document a medical indication for a prescribed diet." Id. at 23. Gates's April 2, 2019 Headquarters Level Response further indicates that the CDCR's Heart Healthy diet, a "plan restricted in sodium and fact while supplying adequate calories, fiber, and all essential nutrients," and which "purposely contains an average of 300-400 calories per day more than required for the average person," provides Plaintiff with an adequate "buffer" permitting him to "choose not to eat certain foods, either due to food sensitivity or general dislike, without compromising nutritional health." Id.
To state an Eighth Amendment claim, Plaintiff's Complaint must contain "sufficient factual matter," and not just "labels and conclusions," Iqbal, 556 U.S. at 678, to plausibly show Defendants' "purposeful act or failure to respond to [his] pain or possible medical need," and the "harm caused by [this] indifference." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096). Nothing in Plaintiff's pleading or his attached exhibits shows either—and "[a] difference of opinion between a physician and the prisoner-or between medical professionals-concerning what medical care is appropriate does not amount to deliberate indifference." Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc); Wilhelm, 680 F.3d at 1122-23. Instead, Plaintiff must plead facts sufficient to "show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendant[] chose this course in conscious disregard of an excessive risk to [his] health." Snow, 681 F.3d at 988 (citation and internal quotations omitted); Hamby, 821 F.3d at 1092. This he has failed to do.
Accordingly, the Court finds that Plaintiff's Complaint, considered together with the exhibits he has attached, fails to state a plausible Eighth Amendment inadequate medical care claim against Defendants Basto, Roberts, Glynn, or Gates, and that therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004; Rideau v. Small, 402 F. App'x 165, 166 (9th Cir. 2010) (affirming dismissal of prisoner's Eighth Amendment claim that defendants inappropriately denied him a therapeutic medical diet beneficial for his heart condition "because an inmate's disagreement with his physicians or prison officials regarding the course of treatment does not constitute deliberate indifference to serious medical needs.") (citing Toguchi, 391 F.3d at 1058).
Because he is proceeding pro se, however, the Court having now provided him with "notice of the deficiencies in his complaint," will also grant Plaintiff an opportunity to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
III. Conclusion and Order
For the reasons explained, the Court:
1. GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
2. DIRECTS the Secretary of the CDCR, or his designee, to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing monthly payments from his account in an amount equal to twenty percent (20%) of the preceding month's income and forwarding those payments to the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and GRANTS him forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff's Amended Complaint must be complete by itself without reference to his original pleading. Defendants not named and any claim not re-alleged in his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n amended pleading supersedes the original."); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be "considered waived if not repled.").
If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action based both on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure to prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) ("If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into dismissal of the entire action.").
IT IS SO ORDERED. Dated: July 3, 2019
/s/_________
Hon. Gonzalo P. Curiel
United States District Judge