Gonzalez v. Malhotra ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANUEL ANTONIO GONZALEZ, Case No.: 3:19-cv-2056-JLS-AHG CDCR #T-42888, 12 ORDER: (1) DENYING MOTIONS Plaintiff, 13 FOR TEMPORARY RESTRAINING vs. ORDER AND PRELIMINARY 14 INJUNCTION; (2) DENYING DR. MALHOTRA; DR. ZHANG; 15 MOTION TO APPOINT COUNSEL; WARDEN OF R.J. DONOVAN AND (3) DISMISSING COMPLAINT 16 CORRECTIONAL FACILITY; AND PURSUANT TO 28 U.S.C. § 1915A ASSOCIATE WARDEN OF R.J. 17 DONOVAN CORRECTIONAL (ECF Nos. 2, 3, 4) 18 FACILITY, 19 Defendants. 20 21 Plaintiff Manuel Antonio Gonzalez, currently incarcerated at Richard J. Donovan 22 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 23 action filed pursuant to 42 U.S.C. § 1983. ECF No. 1 (“Compl.”). Plaintiff has filed a 24 Motion to Appoint Counsel (ECF No. 2), a Motion for Preliminary Injunction (ECF No. 25 3), and a Motion for a Temporary Restraining Order (“TRO”) (ECF No. 4). Plaintiff 26 prepaid the $400 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action at 27 the time he submitted his Complaint. See ECF No. 5. 28 /// 1 The Court will first consider Plaintiff’s Motion to Appoint Counsel, then conduct 2 the required sua sponte screening pursuant to 28 U.S.C. § 1915A, and finally turn to 3 Plaintiff’s Motions for TRO and Preliminary Injunction. 4 MOTION TO APPOINT COUNSEL 5 Plaintiff requests that the Court appoint him counsel in this matter. See ECF No. 2. 6 There is no constitutional right to counsel in a civil case. See Lassiter v. Dept. of Soc. 7 Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th 8 Cir. 2004). A district court may at its discretion appoint counsel if “exceptional 9 circumstances” exist. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991). Exceptional 10 circumstances exist where there is cumulative showing of both a likelihood of success on 11 the merits and a demonstrated inability of the pro se litigant to articulate his claims in light 12 of their legal complexity. Id. 13 Here, nothing in the record at this stage in the case demands that the Court exercise 14 its limited discretion to request that an attorney represent Plaintiff pro bono pursuant to 28 15 U.S.C. § 1915(e)(1). As currently pled, Plaintiff’s Complaint demonstrates that, while he 16 may not be formally trained in law, he nevertheless is capable of articulating the facts and 17 circumstances relevant to his claims, which are typical and not legally “complex.” 18 Agyeman, 390 F.3d at 1103. Moreover, for the reasons discussed below, Plaintiff has yet 19 to show he is likely to succeed on the merits of his claims. Therefore, the Court DENIES 20 Plaintiff’s Motion for Appointment of Counsel (ECF No. 2). 21 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915A 22 I. Legal Standard 23 Plaintiff was incarcerated at the time he filed this action. See generally Compl. “As 24 used in this section, the term ‘prisoner’ means any person incarcerated or detained in any 25 facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, 26 violations of criminal law or the terms or conditions of parole, probation, pretrial release, 27 or diversionary program.” 42 U.S.C. § 1915A(c); see also Olivas v. Nev. ex rel. Dept. of 28 /// 1 Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (citing 28 U.S.C. § 1915(h), 1915A(c); 42 2 U.S.C. § 1997e(h)). 3 Section 1915A “mandates early review—‘before docketing [] or [] as soon as 4 practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a 5 governmental entity or officer or employee of a governmental entity.’” Chavez v. 6 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of 7 section 1915A apply to all prisoners––no matter what their fee status is––who bring suit 8 against a governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 9 443, 446–47 (9th Cir. 2000). “On review, the court shall . . . dismiss the complaint, or any 10 portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon 11 which relief may be granted; or (2) seeks monetary relief from a defendant who is immune 12 from such relief.” Olivas, 856 F.3d at 1283 (quoting 28 U.S.C. § 1915A(b)). “The purpose 13 of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need not bear the 14 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) 15 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).1 16 Section 1915A “incorporates the familiar standard applied in the context of failure 17 to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 18 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient 19 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 21 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals 22 of the elements of a cause of action, supported by mere conclusory statements, do not 23 suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible 24 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on 25 its judicial experience and common sense.” Id. The “mere possibility of misconduct” or 26 27 1 A similar screening would be required if Plaintiff were proceeding in forma pauperis. See 28 U.S.C. 28 1 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this 2 plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 3 2009). 4 II. Factual Allegations 5 Plaintiff alleges that he was “subjected” to a “past head injury” on March 18, 2014. 6 Compl. at 13. Plaintiff alleges that this injury resulted in “concussion, post-concussion 7 syndrome, long term memory loss, short term memory loss, off balance, loss of 8 coordination,” and “constant pressure in head.” Id. He further alleges that the “constant 9 pressure in head” later led to “high blood pressure in eyes, damaging eye sight, irreparable 10 nerve damage” which resulted in Plaintiff having to “take prescription eye drops” for the 11 rest of his life. Id. 12 Plaintiff alleges that Defendant Dr. Malhotra, a neurologist, “never ordered [an] 13 EMG test for nerve damage” resulting in “nerve damage and optic nerve damage.” Id. 14 Plaintiff claims that this damage to his eyes was “discovered by neuro-ophthalmologist” in 15 February of 2019. Id. Plaintiff alleges Dr. Malhotra “was trying to cover up [Plaintiff’s] 16 injuries” because he failed to provide “adequate medical care.” Id. at 14. 17 Plaintiff alleges Defendant Dr. Zhang, his primary care provider, denied him 18 adequate medical care when he purportedly failed to “re-schedule [a] return follow up 19 appointment with [a] ‘neuro ophthalmologist.’” Id. at 16. The neuro ophthalmologist had 20 “ordered [a] ‘return appointment follow up’ . . . specifically to monitor high blood pressure 21 in eyes and the effects of prescription eye drops, and monitor damage eyesight.” Id. 22 Plaintiff alleges that when he was examined by Dr. Zhang, Dr. Zhang “noted [that 23 the] specialist report incorrectly stated glaucoma.” Id. Plaintiff alleges that although he 24 had not been diagnosed with glaucoma, Dr. Zhang “refused to document Plaintiff’s request 25 to document the report was incorrect.” Id. Plaintiff alleges Dr. Zhang’s refusal to schedule 26 a follow up with the specialist caused Plaintiff to be “subjected to blindness” and “losing 27 eyesight without [a] specialist monitoring [the] high blood pressure in eyes” or receiving 28 “prescription eye drops.” Id. at 17. 1 Plaintiff also alleges that Defendants “deliberately placed” him in the “wrong 2 classification of ‘double cell clearance’ when ‘single cell’ was correct classification.” Id. 3 at 18. Plaintiff alleges that he was “denied the right to appeal ICC committee decision.” 4 Id. Plaintiff asserts that at his “initial review committee” when he arrived at RJD, he 5 “explained” that if he Defendants housed him in a double cell, “any inmate [who] was 6 placed in cell . . . would be assaulted in Plaintiff’s self-defense.” Id. at 19. Based on his 7 explanation, Plaintiff maintains that the classification committee should have scheduled a 8 “separate single cell review committee.” Id. Plaintiff claims his correctional counselor, 9 Medina, “never provided” documents for Plaintiff to file an appeal of the decision to house 10 him in a double cell. Id. Plaintiff alleges Medina “deliberately placed Plaintiff on wrong 11 classification to cause harm to Plaintiff.” Id. at 20. 12 Plaintiff is seeking $21,000,000 in “nominal, compensatory, and punitive damages,” 13 along with injunctive relief. See id. at 21–22. 14 III. Discussion 15 A. Inadequate Medical Care Claims 16 To the extent that Plaintiff contends Defendants Dr. Malhotra and Dr. Zhang failed 17 to provide him with adequate medical care, he fails to allege a plausible Eighth Amendment 18 claim. See Iqbal, 556 U.S. at 678; Wilhelm, 680 F.3d at 1121 (citing 28 U.S.C. § 1915A). 19 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 20 punishment unless the mistreatment rises to the level of “deliberate indifference to serious 21 medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. 22 Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires 23 facts sufficient to show (1) “a ‘serious medical need’ by demonstrating that failure to treat 24 [his] condition could result in further significant injury or the ‘unnecessary and wanton 25 infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 26 indifferent.” Jett, 439 F.3d at 1096. 27 “Serious medical needs can relate to ‘physical, dental and mental health.’” Edmo v. 28 Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 2 (1995)). But prison officials are not deliberately indifferent unless they “know[] of and 3 disregard[] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. 4 “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cnty. Ariz., 609 F.3d 5 1011, 1019 (9th Cir. 2010), and is present only in cases where there was “a purposeful act 6 or failure to respond to a prisoner’s pain or possible medical need,” and that the indifference 7 caused harm. Jett, 439 F.3d at 1096. The alleged indifference to medical needs must also 8 be substantial; inadequate treatment due to malpractice, or even gross negligence, does not 9 amount to a constitutional violation. Estelle, 429 U.S. at 106. 10 As an initial matter, the Court will presume that Plaintiff’s factual allegations 11 describing his medical condition are sufficient to plausibly suggest he suffered from an 12 objectively serious medical need. See Lopez, 203 F.3d at 1131 (“serious medical needs” 13 include “a medical condition that significantly affects an individual’s daily activities,” and 14 “the existence of chronic and substantial pain”) (citation and internal quotations omitted). 15 To support a claim of deliberate indifference, however, Plaintiff must allege additional 16 facts that plausibly show the course of treatment Defendants Dr. Malhotra and Dr. Zhang 17 undertook was “medically unacceptable under the circumstances,” and that they “chose 18 this course in conscious disregard of an excessive risk to the plaintiff’s health.” Edmo, 935 19 F.3d at 786 (citations omitted). Plaintiff fails to adequately plead those additional facts. 20 Regarding Defendant Dr. Malhotra, Plaintiff only alleges that Dr. Malhotra 21 purportedly did not agree to order a “test for nerve damage.” Compl. at 13. As to 22 Defendant Dr. Zhang, Plaintiff only alleges that Dr. Zhang purportedly “fail[ed] to re- 23 schedule [a] return follow up appointment with ‘neuro ophthalmologist.” Id. at 16. The 24 Court finds these allegations fail to support a deliberate indifference claim. See Estelle, 25 429 U.S. at 106 (“[A] complaint that a physician has been negligent in diagnosing or 26 treating a medical condition does not state a valid claim of medical mistreatment under the 27 Eighth Amendment. Medical malpractice does not become a constitutional violation 28 merely because the victim is a prisoner.”); id. at 107 (noting that “the question whether an 1 x-ray . . . is indicated is a classic example of a matter for medical judgment,” and that 2 provider’s failure to order “an x-ray or additional diagnostic techniques” does not 3 constitute deliberate indifference); Edmo, 935 F.3d at 786 (“A difference of opinion 4 between a physician and the prisoner—or between medical professionals—concerning 5 what medical care is appropriate does not amount to deliberate indifference.”) (citations 6 omitted). 7 Based on the above, the Court finds that Plaintiff has failed to state an Eighth 8 Amendment claim against either Defendants Dr. Malhotra and Dr. Zhang upon which relief 9 can be granted. Accordingly, the Court DISMISSES Plaintiff’s inadequate medical care 10 claims against Defendants Dr. Malhotra and Dr. Zhang. 11 B. Single Cell Status Claim 12 Plaintiff alleges that Defendants violated his constitutional rights by refusing to 13 provide him with “single cell” status. See Compl. at 18–21. Plaintiff does not have a 14 constitutional right to be housed at a particular institution or cell. See Olim v. Wakinekona, 15 461 U.S. 238, 244-50 (1983); Meachum v. Fano, 427 U.S. 215, 224 (1976); Moody v. 16 Daggett, 429 U.S. 78, 87 n.9 (1976). Plaintiff therefore cannot raise a claim for 17 constitutional violations for refusing to place him in a particular cell. 18 To the extent that Plaintiff is attempting to state an Eighth Amendment claim for 19 failure to protect, the Court finds that Plaintiff has failed to state a claim upon which relief 20 could be granted. To state a failure to protect claim, Plaintiff must allege facts sufficient 21 to show that Defendants were “deliberately indifferent,” which in this context means that 22 they were aware of but nevertheless consciously disregarded an excessive risk to his health 23 or safety. Farmer, 511 U.S. at 834. If the official is not alleged to have actual knowledge 24 of a serious risk of harm, but is alleged to be aware of facts from which the inference could 25 be drawn that a substantial risk of serious harm exists, the plaintiff must further allege that 26 the official “also dr[ew] the inference.” Id. at 837. 27 Here, Plaintiff offers no specific factual allegations as to why he would be subjected 28 to a risk of serious harm, other than to state that “if any inmate was placed in cell the inmate 1 would be assaulted in Plaintiff’s ‘self-defense.’” Compl. at 19. There is no explanation 2 for why Plaintiff would assault a cellmate or any specific allegations that Plaintiff faces a 3 serious risk to his safety if he were housed in a double cell. Plaintiff’s allegations fall short 4 of plausibly showing that any of the named Defendants could have drawn the inference 5 that there was a substantial risk of serious harm to Plaintiff. See Iqbal, 556 U.S. at 678 (“A 6 claim has facial plausibility when the plaintiff pleads factual content that allows the court 7 to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). 8 The Court finds that as currently pled, Plaintiff has failed to show that any Defendant 9 consciously disregarded Plaintiff’s safety or that any such conscious disregard caused 10 Plaintiff harm. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (noting that to 11 establish a deprivation of a constitutional right by any particular individual, plaintiff must 12 allege that the individual, in acting or failing to act, was the actual and proximate cause of 13 his injury). Thus, the Court DISMISSES Plaintiff’s Eighth Amendment failure to protect 14 claims for failing to state a claim upon which relief can be granted. 15 MOTIONS FOR TRO AND PRELIMINARY INJUNCTION 16 Plaintiff has filed two motions requesting injunctive relief as it “pertains to claim 17 three,” which is Plaintiff’s request for single cell status. ECF No. 2 at 1; ECF No. 3 at 1. 18 Plaintiff contends that he is “currently being subjected to threat of irreparable harm by 19 wrong classification” and requests injunctive relief in the form of a “placement on single 20 cell status.” ECF No. 2 at 2. Because the two motions are virtually identical, see generally 21 ECF Nos. 2, 3, and the legal standards for each are the substantially the same, the Court 22 will consider the motions together. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 23 240 F.3d 832, 839 n.7 (9th Cir. 2001) (addressing both TRO and preliminary injunction at 24 same time because the analysis is “substantially identical”). 25 “A preliminary injunction is an extraordinary remedy never awarded as of right, and 26 the grant of a preliminary injunction is a matter committed to the discretion of the trial 27 judge.” Epona v. Cnty. of Ventura, 876 F.3d 1214, 1227 (9th Cir. 2017) (internal quotation 28 marks and citations omitted). “A plaintiff seeking a preliminary injunction must establish 1 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 2 absence of preliminary relief, that the balance of equities tips in his favor, and that an 3 injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 4 (2008). “Under Winter, plaintiffs must establish that irreparable harm is likely, not just 5 possible, in order to obtain a preliminary injunction.” All. for Wild Rockies v. Cottrell, 632 6 F.3d 1127, 1131 (9th Cir. 2011). 7 The Prison Litigation Reform Act requires any injunctive relief to satisfy additional 8 requirements when a prisoner seeks preliminary injunctive relief against prison officials: 9 Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires 10 preliminary relief, and be the least intrusive means necessary to 11 correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal 12 justice system caused by the preliminary relief and shall respect 13 the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. 14 15 18 U.S.C. § 3626(a)(2). 16 Section 3626(a)(2) places significant limits upon a court’s power to grant 17 preliminary injunctive relief to inmates, and “operates simultaneously to restrict the equity 18 jurisdiction of federal courts and to protect the bargaining power of prison administrators— 19 no longer may courts grant or approve relief that binds prison administrators to do more 20 than the constitutional minimum.” Gilmore v. People of the State of Cal., 220 F.3d 987, 21 998–99 (9th Cir. 2000). 22 As noted above, the Court concludes that Plaintiff failed to state a plausible claim 23 for relief. See supra at 5–7. Accordingly, the Court concludes that Plaintiff is unlikely to 24 succeed on the merits. This alone is sufficient to deny Plaintiff’s Motions. See, e.g., Sports 25 Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982) (affirming district 26 court’s denial of preliminary injunction where the plaintiff “had failed to show any chance 27 of success on the merits,” which “made a determination of potential injury or a balancing 28 of hardships unnecessary”); Kelley v. Mortg. Elec. Registration Sys., Inc., 642 F. Supp. 2d 1 1048, 1059 (N.D. Cal. 2009) (granting motions to dismiss and therefore denying motion 2 for preliminary injunction for failure to show likelihood of success on the merits). 3 The Court also notes that Plaintiff failed to show irreparable harm. An adequate 4 showing of irreparable harm is the “‘single most important prerequisite for the issuance of 5 a [TRO].’” Universal Semiconductor, Inc. v. Tuoi Vo, No. 5:16-CV-04778-EJD, 2016 WL 6 9211685, at *2 (N.D. Cal. Nov. 29, 2016) (quoting Freedom Holdings, Inc. v. Spitzer, 408 7 F.3d 112, 114 (2d Cir. 2005)). To successfully make that showing, the moving party must 8 “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 9 U.S. at 22 (emphasis original). Plaintiff must do more than plausibly allege imminent 10 harm; he must demonstrate it. Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 11 668, 674 (9th Cir. 1988). This requires Plaintiff to clearly show specific facts that 12 demonstrate a credible threat of immediate and irreparable harm. Fed. R. Civ. P. 65(b). 13 Here, Plaintiff generally states that he “is currently being subjected to threat of 14 irreparable harm by wrong classification.” ECF No. 4 at 2. He offers no other factual 15 allegations from which the Court could find that he currently faces “immediate and 16 irreparable loss or injury” because he is housed in a double cell. Without more, Plaintiff 17 has failed to establish that he currently faces the type of immediate and credible threat of 18 irreparable harm necessary to justify extraordinary injunctive relief at this stage of the case. 19 See All. for the Wild Rockies, 632 F.3d at 1131 (“Under Winter, plaintiff[] must establish 20 that irreparable harm is likely, not just possible.”); Goldie’s Bookstore, Inc. v. Super. Ct. 21 of State of Cal., 739 F.2d 466, 472 (9th Cir. 1984) (“Speculative injury does not constitute 22 irreparable injury.”). 23 Accordingly, the Court DENIES Plaintiff’s Motion for TRO and Motion for 24 Preliminary Injunction. 25 CONCLUSION 26 For the reasons explained, the Court: 27 1. DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 2); 28 2. DENIES Plaintiff’s Motion for Preliminary Injunction (ECF No. 3); 1 3. DENIES Plaintiff's Motion for TRO (ECF No. 4); and 2 4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which 3 relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1); 4 5. GRANTS Plaintiff forty-five (45) days leave from the date this Order is 5 |}electronically docketed to file an Amended Complaint which cures the deficiencies of 6 ||pleading noted above. The amended complaint must be complete by itself without 7 reference to his original pleading. Any Defendant not named and any claim not re-alleged 8 |{in the Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal 9 || Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 10 ||(‘[AJn amended pleading supersedes the original.’’); Lacey v. Maricopa Cnty., 693 F.3d 11 || 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 12 || re-alleged in an amended pleading may be “considered waived if not repled.”). 13 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 14 |/a final Order dismissing this civil action based both on Plaintiff's failure to state a claim 15 ||upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1), and his failure to 16 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 17 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 18 ||to fix his complaint, a district court may convert the dismissal of the complaint into 19 || dismissal of the entire action.”). 20 6. The Clerk of the Court is directed to mail Plaintiff a court approved civil rights 21 ||}complaint form for his use in amending. 22 IT IS SO ORDERED. 23 Dated: December 3, 2019 . tt 24 jen Janis L. Sammartino 25 United States District Judge 26 27 28 Il