Schwerdtfeger v. Paramo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOSEPH Case No.: 19-CV-2255 JLS (JLB) SCHWERDTFEGER, 12 CDCR #P‒70401, ORDER: (1) GRANTING MOTION 13 TO PROCEED IN FORMA Plaintiff, PAUPERIS, (2) DISMISSING 14 vs. DEFENDANT PARAMO PURSUANT 15 TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)(1), AND (3) DIRECTING 16 PARAMO, Warden; R. BUCKEL, Assoc. U.S. MARSHAL TO EFFECT 17 Warden Business Services; UNKNOWN SERVICE UPON DEFENDANT R. CDCR AGENT, Supervisor of Plant BUCKEL PURSUANT TO 28 U.S.C. 18 Operations, § 1915(d) AND FED. R. CIV. P. 4(c)(3) 19 Defendants. (ECF No. 2) 20 21 Plaintiff Michael Joseph Schwerdtfeger, proceeding pro se and currently 22 incarcerated at the California Health Care Facility (“CHCF”) in Stockton, California, has 23 filed a Complaint pursuant to 42 U.S.C. § 1983 (“Compl.,” ECF No. 1), together with a 24 Motion to Proceed in Forma Pauperis (“IFP”) (“Mot.,” ECF No. 2). Plaintiff claims prison 25 officials at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, 26 violated his Eighth Amendment rights on November 25, 2018, when their failure to post 27 warnings or to install a “self-closing device[]” and/or door handles inside the dorm doors 28 / / / 1 in RJD’s ‘E’ Facility resulted in the amputation of his left index finger tip. See Compl. at 2 3. 3 MOTION TO PROCEED IN FORMA PAUPERIS 4 All parties instituting any civil action, suit, or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A prisoner granted leave to proceed IFP, 10 however, remains obligated to pay the entire fee in “increments” or “installments,” Bruce 11 v. Samuels, 577 U.S. ___, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 12 1185 (9th Cir. 2015), regardless of whether his action is ultimately dismissed. See 28 13 U.S.C. §§ 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 15 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 17 § 1915(a)(2); Andrews v. King (“King”), 398 F.3d 1113, 1119 (9th Cir. 2005). From the 18 certified trust account statement, the Court assesses an initial payment of 20% of (a) the 19 average monthly deposits in the account for the past six months, or (b) the average monthly 20 balance in the account for the past six months, whichever is greater, unless the prisoner has 21 no assets. See 28 U.S.C. §§ 1915(b)(1), (4). The institution having custody of the prisoner 22 then collects subsequent payments, assessed at 20% of the preceding month’s income, in 23 any month in which his account exceeds $10, and forwards those payments to the Court 24 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629. 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 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 28 1 In support of his Motion, Plaintiff has submitted a copy of his CDCR Inmate 2 Statement Report, as well as a prison certificate of funds authorized by a CHCF accounting 3 official. See ECF No. 2 at 4–8; see also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; 4 King, 398 F.3d at 1119. These records show Plaintiff had no average monthly deposit and 5 carried no average monthly balance over the six months prior to filing. They further show 6 he had no money to his credit at the time his Complaint was submitted for filing with the 7 Clerk of the Court. 8 The Court therefore GRANTS Plaintiff’s Motion (ECF No. 2) and assesses no initial 9 partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (“In no 10 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 11 or criminal judgment for the reason that the prisoner has no assets and no means by which 12 to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 13 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 14 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 15 to him when payment is ordered”). Instead, the Court will direct the $350 total filing fee 16 owed in this case be collected by the agency having custody of Plaintiff and forwarded to 17 the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 18 § 1915(b)(2). 19 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A 20 I. Standard of Review 21 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 22 answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, 23 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 24 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 25 immune. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 26 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 27 (discussing 28 U.S.C. § 1915(e)(2)). “The purpose of [screening] is ‘to ensure that the 28 / / / 1 targets of frivolous or malicious suits need not bear the expense of responding.’” 2 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.) 3 “The standard for determining whether a plaintiff has failed to state a claim upon 4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 6 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 7 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 9 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 10 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 13 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 14 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 15 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 17 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 18 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 19 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the Court 20 may consider exhibits attached to his Complaint. See Fed. R. Civ. P. 10(c) (“A copy of a 21 written instrument that is an exhibit to a pleading is a part of the pleading for all 22 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 23 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 24 (9th Cir. 1978) (noting that “material which is properly submitted as part of the complaint 25 may be considered” in ruling on a Rule 12(b)(6) motion to dismiss)). 26 II. Plaintiff’s Factual Allegations 27 In late 2016, Plaintiff alleges the E yard at RJD was “toured, inspected and cleared 28 for occupancy by management staff.” Compl. at 3. On January 27, 2017, Plaintiff was 1 transferred to E Yard and assigned to Building 24, Dorm 102-3L. Id. At that time, there 2 were “no automatic door closing devices” or “inside handles” on the dorm doors. Id. 3 Instead, a “keypad” was used to lock and unlock the doors. Id. at 6. Plaintiff claims that, 4 because the keypad was installed “flush with the door,” it “created a perfect shear,” and 5 that on November 25, 2018, the tip of his left index finger was amputated when he 6 attempted to close a dorm door. Id. at 3‒4. 7 Plaintiff contends his injury was the result of “nothing less than deliberate 8 indifference” because another E Yard inmate named Tarkington also severed the tip of his 9 finger the same way more than two months before, on September 1, 2018. Id. at 3; id. Ex. 10 A at 12‒13. When Tarkington filed a CDCR 602 Inmate Appeal regarding his injury and 11 complaining it was due to the lack of interior door handles, Defendant R. Buckel, RJD’s 12 Associate Warden of Business Services, partially granted the appeal on September 24, 13 2018, and notified Tarkington that “Plant Operations [was] working with Facilities 14 Management to procure funding for . . . door handles to be installed.” Id. at 13. 15 Plaintiff further claims that “we all complained to building staff and [were] told 16 management was looking for funding to install this hardware.” Id. at 3. But none was 17 installed, no warning signs were posted, and, on November 25, 2018, Plaintiff’s fingertip 18 was severed, like Tarkington’s. Id. at 3‒4. Plaintiff contends he “did not know about 19 inmate Tarkington’s injury until after [his] occurred” and, “if warning signs had been 20 posted” or if E Yard was “not cleared for occupancy until self-closing and/or inside door 21 handles were installed,” his injury may have been prevented. Id. at 4. 22 III. Analysis 23 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 24 elements: (1) that a right secured by the Constitution or laws of the United States was 25 violated, and (2) that the alleged violation was committed by a person acting under the 26 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 27 1035–36 (9th Cir. 2015). 28 / / / 1 A. Claims Against Warden Paramo 2 With respect to Defendant Paramo, the Warden of RJD, Plaintiff claims only that he 3 was “directly responsible for day to day operations” and for initially “clearing the E Yard 4 for occupancy.” Compl. at 2. Plaintiff fails to state a plausible Eighth Amendment claim 5 for relief against Defendant Paramo, however, because he does not include any “further 6 factual enhancement” to describe how, when, or whether Defendant Paramo was personally 7 aware that Plaintiff or any other inmate in the E Yard Facility faced a substantial risk of 8 serious harm because the dorm doors lacked an interior handle. See Iqbal, 556 U.S. at 678 9 (citing Twombly, 550 U.S. at 557). 10 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. 11 Sanderson, 9 F.3d 1433, 1437–38 (9th Cir. 1993). “Because vicarious liability is 12 inapplicable to . . . § 1983 suits, [a plaintiff] must plead that each government-official 13 defendant, through the official’s own individual actions, has violated the Constitution.” 14 Iqbal, 556 at 676; see also Jones v. Cmty. Redev. Agency of City of Los Angeles, 733 F.2d 15 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree of 16 particularity overt acts which defendants engaged in” to state a claim). “A plaintiff must 17 allege facts, not simply conclusions, t[o] show that [each defendant] was personally 18 involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 19 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 20 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983 claim.”). 21 As currently pleaded, Plaintiff’s Complaint offers no factual detail from which the 22 Court might reasonably infer a plausible Eighth Amendment claim on the part of Defendant 23 Paramo. Iqbal, 556 U.S. at 678. Instead, Plaintiff includes the Warden based solely on his 24 job description, claims generally that he was responsible for ensuring the overall safety of 25 the facility, and suggests he should have known about the risk posed by E Facility’s dorm 26 doors because his supervisory duties include “Facilities Management.” See Compl. at 4. 27 But Fed. R. Civ. P. 8 “demands more than an unadorned, the-defendant-unlawfully- 28 harmed-me accusation” and, “[t]o survive a motion to dismiss, a complaint must contain 1 sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its 2 face.’” Iqbal, 662 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 570). Allegations that 3 a prison official “should have been aware of [a] risk, but was not” simply do not amount 4 to an Eighth Amendment violation, “no matter how severe the risk.’” Toguchi v. Chung, 5 391 F.3d 1051, 1060 (9th Cir. 2004) (citations omitted). 6 The Court therefore dismisses Defendant Paramo sua sponte based on Plaintiff’s 7 failure to state an Eighth Amendment claim against him. See 28 U.S.C. 8 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Rhodes, 621 F.3d at 1004; Lopez, 203 F.3d at 1126–27. 9 B. Claims Against Associate Warden R. Buckel 10 With respect to the Eighth Amendment claims alleged against Defendant Buckel, 11 Associate Warden of RJD, however, the Court finds Plaintiff’s allegations sufficient to 12 sufficient to survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. 13 §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. 14 Specifically, Plaintiff alleges Defendant Buckel was actually aware that the dorm doors in 15 E Facility could sever an inmate’s finger tips because she personally granted inmate 16 Tarkington’s request that door handles be installed on the inside of the cells in Facility E 17 on September 24, 2018‒‒more than two months before Plaintiff’s injury. See Compl. at 18 3‒4, 12‒13; United States v. Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) (the Eighth 19 Amendment “requires that prison officials ‘must take reasonable measures to guarantee the 20 safety of the inmates’”) (quoting Farmer v. Brennan, 511 U.S. 825, 833, 847 (1994) 21 (holding that “prison officials have a duty [under the Eighth Amendment] . . . to protect 22 prisoners” and, therefore, “may be held liable … if [they] know[] that inmates face a 23 substantial risk of serious harm and disregard[] that risk by failing to take reasonable 24 measures to abate it”). “[I]t does not matter whether the risk comes from a single source 25 or multiple sources, any more than it matters whether a prisoner faces an excessive risk . . . 26 for reasons personal to him or because all prisoners in his situation face such a risk.” 27 Farmer, 511 U.S. at 843; Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1076 28 (9th Cir. 2013). 1 Therefore, the Court will direct the United States Marshal to effect service of the 2 summons and Plaintiff’s Complaint on Defendant Buckel on Plaintiff’s behalf.2 See 28 3 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process, and perform 4 all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be 5 made by a United States marshal or deputy marshal . . . if the plaintiff is authorized to 6 proceed in forma pauperis under 28 U.S.C. § 1915.”). 7 CONCLUSION 8 For all the reasons discussed, the Court: 9 1. GRANTS Plaintiff’s Motion (ECF No. 2); 10 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 11 Plaintiff’s trust account the full $350 filing fee owed in monthly payments in an amount 12 equal to twenty percent (20%) of the preceding month’s income to the Clerk of the Court 13 each time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2) 14 15 2 Plaintiff also claims that an “Unknown CDCR Agent” employed as RJD’s “Supervisor of Plant 16 Operations” failed to “make the physical plant safe and habitable,” install interior handles on E Facility’s 17 dorm doors, and post warning signs after inmate Tarkington’s finger was injured on September 1, 2018. See Compl. at 2, 3–4, 12‒13. These allegations, like those pleaded against Defendant Buckel, are 18 sufficient to state a plausible claim for relief. See Wilhelm, 680 F.3d at 1123; see also Iqbal, 556 U.S. at 678. Plaintiff, however, must identify the unknown Plant Operations Supervisor he claims was aware of 19 the risk posed by the dorm doors and was responsible for abating it, see Farmer, 511 U.S. at 833, 837, and substitute his or her true name in an amended pleading before the United States Marshal will be 20 ordered and/or able to execute service upon him or her. See Aviles v. Village of Bedford Park, 160 F.R.D. 21 565, 567 (N.D. Ill. 1995) (“Doe defendants must be identified and served within [90] days of the commencement of the action against them.”); see also Fed. R. Civ. P. 4(m); Fed. R. Civ. P. 15(c)(1)(C). 22 Generally, Doe pleading is disfavored, Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), and in most instances it is impossible for the United States Marshal to serve a party identified only as a Doe. See 23 Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (noting that, to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to identify the defendant”); 24 Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, No. 18-00239 DKW-KJM, 2018 WL 3580764, at 25 *6 (D. Haw. July 25, 2018) (“As a practical matter, the United States Marshal cannot serve a summons and complaint on an anonymous defendant.”). The Court will not dismiss the “Unknown CDCR Agent, 26 Supervisor of Plant Operations” as a Defendant at this time, however, because where the identity of an alleged party is not known prior to filing of an action, Ninth Circuit authority permits Plaintiff the 27 opportunity to pursue appropriate discovery to identify the unknown Doe, unless it is clear that discovery would not uncover their identity, or his pleading requires dismissal for other reasons. See Wakefield v. 28 1 with ALL PAYMENTS CLEARLY IDENTIFIED BY THE NAME AND NUMBER 2 ASSIGNED TO THIS ACTION; 3 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 4 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 5 4. DISMISSES sua sponte Plaintiff’s claims against Defendant Warden Paramo 6 based on his failure to state a claim against him pursuant to 28 U.S.C. §§ 1915(e)(2) and 7 1915A(b) and DIRECTS the Clerk of the Court to terminate Warden Paramo as a party to 8 this matter; 9 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 10 1) upon Defendant Buckel and to forward it to Plaintiff along with a blank U.S. Marshal 11 Form 285 for this Defendant. In addition, the Clerk will provide Plaintiff with a certified 12 copy of this Order, a certified copy of his Complaint (ECF No. 1), and the summons so that 13 he may serve them upon Defendant Buckel. Upon receipt of this “IFP Package,” Plaintiff 14 must complete the Form 285 as completely and accurately as possible, including an 15 address where Defendant Buckel may be served, see S.D. Cal. CivLR 4.1.c, and return it 16 to the U.S. Marshal according to the instructions the Clerk provides in the letter 17 accompanying his IFP package; 18 6. ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint and 19 summons upon Defendant Buckel as directed by Plaintiff on the USM Form 285 provided 20 to him with all costs of that service advanced by the United States, see 28 U.S.C. § 1915(d); 21 Fed. R. Civ. P. 4(c)(3); 22 7. ORDERS Defendant Buckel, once served, to reply to Plaintiff’s Complaint 23 within the time provided by the applicable provisions of Federal Rule of Civil Procedure 24 12(a), see 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to 25 “waive the right to reply to any action brought by a prisoner confined in any jail, prison, or 26 other correctional facility under section 1983,” once a court has conducted its sua sponte 27 screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and, thus, has made a 28 preliminary determination based on the face on the pleading alone that the plaintiff has a 1 “reasonable opportunity to prevail on the merits,” the defendant is required to respond); 2 3 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 4 ||serve upon Defendant Buckel or, if appearance has been entered by counsel, upon 5 ||Defendant’s counsel, a copy of every further pleading, motion, or other document 6 ||submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 7 |\|include with every original document he seeks to file with the Clerk of the Court, a 8 certificate stating the manner in which a true and correct copy of that document has been 9 || was served on Defendant or her counsel and the date of that service. See S.D. Cal. CivLR 10 Any document received by the Court which has not been properly filed with the Clerk 11 which fails to include a Certificate of Service upon the Defendants may be disregarded. 12 IT ISSO ORDERED. 13 14 ||Dated: January 28, 2020 . tt f te 15 on. Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 10