Humphries v. Newsome ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH HUMPHRIES, Case No.: 3:20-cv-0659-JAH-WVG CDCR #C-56160, 12 ORDER: Plaintiff, 13 14 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 15 vs. [ECF No. 2] 16 2) DENYING REQUEST TO 17 GAVIN NEWSOME, AKINWUML, TRANSFER TO APPROPRIATE M.D., L. SAIDRO, M.D., M. GLYNN, S. DISTRICT [ECF No. 6] 18 ROBERTS, M.D., A. SAZON, 19 Defendants. AND 20 3) DISMISSING COMPLAINT FOR 21 FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. 22 § 1915(e)(2)(B) AND § 1915A(b) 23 24 Joseph Humphries (“Plaintiff”), incarcerated at R.J. Donavan Correctional Facility 25 (“RJD”) in San Diego, California, is proceeding pro se in this case with a civil rights 26 Complaint (“Compl.”) filed pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) 27 Plaintiff has not prepaid the $400 civil filing fee required by 28 U.S.C. § 1914(a); 28 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 1 U.S.C. § 1915(a). (See ECF No. 2.) He has also filed a “Request to Transfer Case to the 2 Appropriate District.” (See ECF No. 6.) 3 I. Motion to Proceed IFP 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). However, a prisoner granted leave to proceed 10 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 11 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 12 1185 (9th Cir. 2015), and 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 “certified 15 copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month 16 period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); 17 Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account 18 statement, the Court assesses an initial payment of 20% of (a) the average monthly 19 deposits in the account for the past six months, or (b) the average monthly balance in the 20 account for the past six months, whichever is greater, unless the prisoner has no assets. 21 See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 22 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s 23 income, in any month in which his account exceeds $10, and forwards those payments to 24 / / / 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 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. 2 at 629. 3 In support of his IFP Motion, Plaintiff has submitted a copy of his California 4 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report as 5 well as a Prison Certificate completed by an accounting officer at RJD. See ECF No. 3 at 6 1‒3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These 7 statements show Plaintiff maintained an average monthly balance of $264.33, and had 8 $195.55 in average monthly deposits credited to his account over the 6-month period 9 immediately preceding the filing of his Complaint. His available balance as of April 7, 10 2020, was $192.06. (See ECF No. 3 at 1.) 11 Therefore, the Court GRANTS Plaintiff’s Motion (ECF No. 2) and assesses an 12 initial partial filing fee of $52.86, pursuant to 28 U.S.C. § 1915(b)(1). The remaining 13 balance of the $350 total fee owed in this case must be collected by the agency having 14 custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. 15 § 1915(b)(2). 16 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b) 17 A. Standard of Review 18 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 19 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 20 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 21 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 22 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 23 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 25 the targets of frivolous or malicious suits need not bear the expense of responding.’” 26 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 27 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 28 / / / 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 5 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 6 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 7 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 9 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 13 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 14 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 15 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 16 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 17 (9th Cir. 2009). 18 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the 19 Court may consider exhibits attached to his Complaint. See Fed. R. Civ. R. 10(c) (“A 20 copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all 21 purposes.”); Hall Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 152, 1555 22 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 23 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may 24 be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)). 25 B. Plaintiff’s Allegations 26 In his Complaint, Plaintiff states that he suffers from cirrhosis of the liver as a 27 result of having chronic hepatitis C. (See Compl. at 3.) Plaintiff indicates that he was 28 diagnosed with hepatitis C in March 2015. (See id., Ex. B at 14.) Plaintiff alleges he 1 received medical care for his hepatitis C at Pleasant Valley State Prison (“PVSP”), prior 2 to being transferred to RJD. Plaintiff states that he went “to [the] medical department for 3 hepatitis C for the longest time for treatment.” (Id.) He claims, however, that due to 4 inadequate medical care, his “condition worsened and eventually turned into cirrhosis of 5 [the] liver.” (Id.) At some point, Plaintiff was transferred to RJD.2 Plaintiff argues that 6 various staff members at PVSP and RJD acted with “deliberate indifference to [his] 7 serious medical need[s]” by allowing his chronic hepatitis C to eventually cause cirrhosis 8 of the liver. (Id.) 9 Specifically, Plaintiff asserts that Dr. Akinwuml, who appears to have been a 10 medical doctor on staff at PVSP in 2015 when Petitioner was incarcerated there, “failed 11 to administer proper medical treatment to him and was the prime defendant to act in 12 concert with the other defendants” who were deliberately indifferent toward his medical 13 needs. (Compl. at 4.) He contends that, as a result, his “condition . . . became worse a few 14 days, months later, prior to his transfer to [RJD].” (Id.) Petitioner claims Dr. Akinwuml 15 had “all the authority and expertise” to effectively treat his hepatitis C, but due to his 16 deliberate indifference, Plaintiff’s condition worsened and “turned into cirrhosis of the 17 liver.” (Id.) 18 Plaintiff further contends that medical staff at RJD, including Dr. Roberts, A. 19 Sazon, and Dr. Saidro, failed to properly attend to his medical needs after he was 20 transferred there. He claims Dr. Roberts “failed to treat and care for [him]” when he 21 visited Roberts for “legal treatment [of] his hepatitis C.” (Id. at 2.) Plaintiff also claims 22 that Sazon, a registered nurse at RJD, “could have acted to assist ‘[him] in his needs [for] 23 the [hepatitis C] treatment but instead . . . act[ed] in concert with all the named 24 defendants” to deprive him of his Eighth Amendment rights. (Id. at 2.) Finally, he 25 26 27 2 It is not clear from the facts alleged in the Complaint precisely when Plaintiff was transferred to RJD from PVSP, but it was sometime after March 2015 and before July 2018. (See Compl. Ex. A at 9; Ex. B 28 1 contends Dr. Saidro “failed to treat and or administer a viable treatment” which “further 2 allowed for cirrhosis of [his] liver.” (Id.) 3 Plaintiff also claims he was denied due process and access to courts by a prison 4 official at RJD. He states that Defendant M. Glynn, purportedly the “executive officer of 5 the appeals process at [RJD,] had the authority to look at the contentions [contained in 6 Plaintiff’s inmate grievances regarding his medical care] and to make sure the issues 7 were in accordance with standing law.” (Id. at 5.) He asserts Glynn “could have ordered 8 the matter back to the doctors (defendants) for further action, but failed to do so, thereby 9 denying me the right to access the courts and rights under both the United States and 10 California Constitutions...” (Id.) 11 Plaintiff claims Defendants violated his rights to “proper medical care” and “due 12 process” and he seeks $2.5 million in compensatory damages, $3.5 million in punitive 13 damages and “any other action the court may deem appropriate ... and in the interest of 14 justice.” (Id. at 7.) 15 C. 42 U.S.C. § 1983 16 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 17 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 18 1063, 1067 (9th Cir. 2006); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 19 (1978) (“[M]unicipalities and other local governmental units … [are] among those 20 persons to whom § 1983 applies.”). To state a claim under section 1983, Plaintiff must 21 allege two essential elements: (1) that a right secured by the Constitution or laws of the 22 United States was violated and (2) that the alleged violation was committed by a person 23 acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. 24 Frey, 789 F.3d 1030, 1035‒36 (9th Cir. 2015). 25 D. Governor Newsome 26 In the caption of his Complaint, Plaintiff names Governor Gavin Newsome as a 27 defendant. (See Compl. at 1.) Plaintiff, however, does not allege any facts in the body of 28 the Complaint as to how Newsome’s conduct amounted to a violation of his 1 Constitutional rights. (See generally, id.) “All § 1983 claims must be premised on a 2 constitutional violation.” Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). To 3 state a claim, Plaintiff must demonstrate that each defendant personally participated in 4 the deprivation of his constitutional rights. Iqbal, 556 U.S. at 673; Colwell v. Bannister, 5 763 F.3d 1060, 1070 (9th Cir. 2014). Plaintiff’s Complaint contains no “factual content” 6 describing Newsome’s direct involvement in any constitutional injury actually suffered 7 by Plaintiff sufficient to “allow[ ] the court to draw the reasonable inference that the 8 [Defendant] is liable” for any constitutional violation. See Iqbal, 556 U.S. at 678. 9 “A defendant may be held liable as a supervisor under § 1983 ‘if there exists 10 either (1) his or her personal involvement in the constitutional deprivation, or (2) a 11 sufficient causal connection between the supervisor’s wrongful conduct and the 12 constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting 13 Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). This causal connection “can be 14 established by setting in motion a series of acts by others, or by knowingly refusing to 15 terminate a series of acts by others, which the supervisor knew or reasonably should have 16 known would cause others to inflict a constitutional injury.” Id. at 1207–08 (internal 17 quotation marks, citation, and alterations omitted). 18 Plaintiff does not allege that Newsome was actually aware of Plaintiff’s medical 19 needs or played any direct role in his medical treatment. (See generally, Compl. at 1–6.) 20 Indeed, Plaintiff fails to allege that Newsome personally participated in, or directed his 21 subordinates to do, anything which caused an actual violation of Plaintiff’s constitutional 22 rights. Jones, 297 F.3d at 934; Starr, 625 F.3d at 1205–06; Redman v. City of San Diego, 23 942 F.2d 1435, 1447 (9th Cir. 1991) (finding supervisory personnel liable only when an 24 adequate causal connection is alleged between the Defendant’s breach of duty and the 25 plaintiff’s constitutional injury). 26 “Absent vicarious liability, each Government official, his or her title 27 notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677. 28 Thus, as currently pleaded, the Court finds Plaintiff’s Complaint amounts to no more than 1 “an unadorned, the defendant[s]-unlawfully-harmed-me-accusation,” that “stops short of 2 the line between possibility and plausibility” that he is entitled to relief. Id. at 678. 3 Therefore, it “fails to state a claim to relief that is plausible on its face,” Id.; Taylor, 880 4 F.2d at 1045, and his claims against Defendant Newsome must be dismissed pursuant to 5 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126–27; 6 Rhodes, 621 F.3d at 1004. 7 E. Eighth Amendment 8 Plaintiff alleges his Eighth Amendment rights were violated by medical staff at 9 PVSP and RJD, who purportedly failed to properly treat his hepatitis C and cirrhosis of 10 the liver. (See Compl. at 2–4.) Where a prisoner’s constitutional claim is one for 11 inadequate medical care, he must allege “acts or omissions sufficiently harmful to 12 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 13 97, 106 (1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The plaintiff must 14 first establish a “serious medical need by demonstrating that [the] failure to treat [his] 15 condition could result in further significant injury or the unnecessary and wanton 16 infliction of pain.” Jett, 439 F.3d at 1096 (citation omitted). A medical need is serious “if 17 the failure to treat the prisoner’s condition could result in further significant injury or the 18 ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 19 (9th Cir. 1991) (quoting Estelle, 429 U.S. at 104), overruled on other grounds by WMX 20 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). 21 Next, Plaintiff must show that the defendant’s response to his objectively serious 22 medical need was deliberately indifferent. Jett, 439 F.3d at 1096. To establish deliberate 23 indifference, a prisoner must allege facts to show: (1) a purposeful act or failure to 24 respond to the prisoner’s pain or possible medical need; and (2) harm caused by the 25 indifference. Id. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 26 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only 27 ‘be aware of the facts from which the inference could be drawn that a substantial risk of 28 serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting 1 Farmer v. Brennan, 511 U.S. 828, 837 (1994)). “If a prison official should have been 2 aware of the risk, but was not, then the official has not violated the Eighth Amendment, 3 no matter how severe the risk.” Id. (quoting Gibson v. County of Washoe, Nevada, 290 4 F.3d 1175, 1188 (9th Cir. 2002). 5 While Plaintiff’s allegations of being diagnosed with hepatitis C and cirrhosis of 6 the liver are sufficient to meet the Eighth Amendment’s objective requirements, see Jett, 7 439 F.3d at 1096 (a medical need is serious when the failure to treat it could result in 8 significant injury or the unnecessary and wanton infliction of pain), he must further allege 9 facts sufficient to show that each individual person he seeks to sue “kn[e]w of and 10 disregard[ed] an excessive risk to [his] health or safety.” Farmer, 511 U.S. at 837; Leer v. 11 Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on individual 12 defendant under § 1983 only if plaintiff can show that defendant proximately caused 13 deprivation of federally protected right). 14 1. Akinwuml 15 Plaintiff alleges that while confined at PVSP, he received inadequate medical care 16 from Akinwuml, a physician at PVSP. (Compl. at 4.) Plaintiff, however, does not allege 17 any specific facts as to how Akinwuml’s conduct amounted to deliberate indifference to 18 his medical needs. He states only that Akinwuml “failed to administer proper medical 19 treatment” and as a result his condition “became worse” in the days and months before 20 his transfer to RJD, ultimately resulting in his hepatitis C “turn[ing] into cirrhosis of the 21 liver.” (Id.) Plaintiff attaches to his Complaint a document dated and signed by 22 “Akinwuml OLA M.D.,” on March 16, 2015, which shows Plaintiff was scheduled for an 23 “On-Site Liver Biopsy.” (Id., Ex. A at 9.) A report from “Quest Diagnostics” dated 24 March 25, 2015, indicates that Plaintiff received the biopsy on March 19, 2015. (Id., Ex. 25 B at 17.) The report states that the biopsy showed “chronic hepatitis (Hepatitis C, Clinical 26 Diagnosis) with Grade 2 activity and state 1-2 fibrosis.” (Id.) The report further states that 27 “no evidence of septal fibrosis or cirrhosis is seen.” (Id.) 28 / / / 1 Plaintiff does not allege any specific facts as to what Defendant Akinwuml did, or 2 failed to do, with regard to his medical treatment. Beyond ordering a liver biopsy, 3 Plaintiff does not specify how Akinwuml’s treatment impacted his medical condition or 4 explain how Akimwuml caused him harm. See McGuckin v. Smith, 974 F.2d 1050, 1060 5 (9th Cir. 1991) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 6 (9th Cir. 1997) (en banc); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 7 407 (9th Cir. 1985). Thus, as currently pleaded, Plaintiff’s Complaint fails to adequately 8 state an Eighth Amendment claim of deliberate indifference to a serious medical need as 9 to Defendant Akinwuml.3 10 2. Roberts, Saidro and Sazon 11 Plaintiff also that members of the medical staff at RJD, Saidro, Roberts and Sazon, 12 failed to adequately treat his hepatitis C and resulting cirrhosis. (Compl. at 2–3.) Plaintiff 13 fails, however, to include any further “factual content” to show that any of these 14 defendants acted with “deliberate indifference to [his] serious medical needs.” Jett, 439 15 F.3d at 1096 (quoting Gamble, 429 U.S. at 104). In order to be deliberately indifferent, a 16 defendant’s acts or omissions must involve more than an ordinary lack of due care, as 17 18 19 3 The Court notes that even if Plaintiff had pleaded facts sufficient to state a plausible inadequate medical care claim as to Akinwuml, it appears from the face of his Complaint that those claims are time-barred. 20 Federal courts apply the forum state’s statute of limitations for personal injury actions. See Jones v. 21 Blanas, 393 F.3d 918, 927 (9th Cir. 2004). The limitations period in California for such actions is two years, id. (citing Cal. Civ. Proc. Code § 335.1), and is tolled for two years for inmates serving less than a 22 life sentence. Cal. Civ. Proc. Code § 352.1; see also Wallace v. Kato, 549 U.S. 384, 394 (2007) (noting that the law of the forum state also governs tolling). A § 1983 cause of action accrues “and the statute of 23 limitation begins to run, when the wrongful act or omission results in damages.” Wallace, 549 U.S. at 391. Plaintiff’s Complaint was filed on April 3, 2020, but his claim as to Dr. Akinwuml is alleged to have 24 arisen in March 2015. (See Compl. at 4.) Thus, Plaintiff alleges the wrongful acts by Akinwuml which 25 caused him harm occurred more than five years before he initiated this suit. This date of accrual exceeds California’s statute of limitations, even including all presumed periods of tolling provided by statute. 26 Wallace, 549 U.S. at 391. Therefore, Plaintiff’s claim against Akinwuml, is also subject to sua sponte dismissal because, as currently pleaded, it is clear from the face of his Complaint that his claim barred by 27 the statute of limitations. See Von Saher, 592 F.3d at 969. Should Plaintiff choose to amend this claim, he must also allege facts which, if proved, might support tolling. See Cervantes v. City of San Diego, 5 F.3d 28 1 “[a] difference of opinion” between a doctor and an inmate, or even between medical 2 professionals, regarding what medical care is appropriate “does not amount to a 3 deliberate indifference.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (citing 4 Gamble, 429 U.S. at 107). 5 Plaintiff alleges that Roberts, Saidio and Sazon “allowed [his hepatitis C] turn into 6 cirrhosis” despite the fact that he had been “going to the medical department for hepatitis 7 C for the longest time for treatment.” (Compl. at 3.) But Plaintiff’s Complaint contains no 8 facts whatsoever which show that any of these Defendants acted with deliberate 9 indifference to any excessive risk to his health. See Farmer, 511 U.S. at 837. Moreover, 10 the exhibits Plaintiff attached to his Complaint reveal only one reference to Roberts.4 On 11 November 6, 2018, “S. Roberts, M.D., Chief Medical Executive, Richard J. Donovan 12 Correctional Facility” signed the “Institutional Level Response” to Plaintiff’s Healthcare 13 Grievance, Tracking #RJD HC 18002418. (Id., Ex. B at 35.) The only specific references 14 to Saidro and Sazon in the Complaint and exhibits also relate to the Institutional Level 15 Response to Healthcare Grievance Tracking #RJD HC 18002418, which was signed by 16 “A. Sazon, RN” on September 4, 2018, and “L. Saidro, M.D.,” who interviewed Plaintiff 17 on October 18, 2018. (Compl. Ex. B at 14.) 18 The Institutional Response states, in part: 19 On 10/18/18, you were interviewed by L. Saidro, Physician and Suregeon (P&S) regarding this healthcare grievance. . . [Y]ou were provided 20 the opportunity to express your concerns. Dr. Saidro explained to you that 21 you were being monitored every 6 months with ultrasounds and every 1 to 2 years [with] EGD for your cirrhosis by gastroenterology. Dr. Saidro 22 23 24 25 4 While “it is not the Court’s duty,” when screening a complaint pursuant to 28 U.S.C. § 1915(e) and 26 § 1915A “to wade through exhibits to determine whether cognizable claims have been stated,” Woodrow v. Cty. of Merced, No. 1:13-cv-01505-AWI, 2015 WL 164427, at *4 (E.D. Cal. Jan 13, 2015), the Court 27 has reviewed Plaintiff’s exhibits to the extent they appear relevant to his medical care claims. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (reaffirming liberal construction of pro se pleadings after 28 1 explained that you were treated [for] hepatitis C successfully and there is no need to be seen by a hepatologist. 2 3 (Id., Ex. B at 34.) Plaintiff was also informed that he would continue to be monitored. 4 (Id.) 5 These facts, as alleged by Plaintiff, even when supplemented by his exhibits, lack 6 the “further factual enhancement” required to plausibly show Roberts, Sazon or Saidro’s 7 “purposeful act[s] or failure[s] to respond to [his]. . . medical need,” or any “harm caused 8 by [this] indifference.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557); 9 Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Instead, Plaintiff offers only 10 the type of “labels and conclusions” or “formulaic recitation[s] of the elements of a[n] 11 [Eighth Amendment] cause of action that will not do.” Iqbal, 662 U.S. at 678 (citing 12 Twombly, 550 U.S. at 555.) To be deliberately indifferent, Defendants’ acts or omissions 13 must involve more than an ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 14 985 (9th Cir. 2012) (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. 15 Plaintiff must plead facts sufficient to “show that the course of treatment the doctor[ ] 16 chose was medically unacceptable under the circumstances and that the defendant[ ] 17 chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 18 F.3d at 988 (citation and internal quotations omitted). 19 Because Plaintiff’s Complaint contains no facts sufficient to show that Roberts, 20 Sazon, or Saidro acted with deliberate indifference to his plight by “knowing of and 21 disregarding an[y] excessive risk to his health and safety,” Farmer, 511 U.S. at 837, he 22 fails to state an Eighth Amendment claim upon which § 1983 relief can be granted. See 23 Toguchi, 391 F.3d at 1058. 24 F. Due Process/Access to Courts 25 Plaintiff also claims Defendant M. Glynn denied him due process and access to 26 courts by failing to properly act on his inmate grievances related to his medical treatment 27 for hepatitis C and cirrhosis. (See Compl. at 5.) But he does not include any specific 28 factual allegations to describe what actions Glynn took, beyond reviewing and signing 1 Plaintiff’s Healthcare Grievance, tracking #RJD HC18002418 (see Compl. Ex. B at 14) 2 and the Institutional Response (“Response”) to the grievance on November 7, 2018 (id. at 3 35). In the grievance, Plaintiff complained he received inadequate medical care for his 4 hepatitis. He requested to be seen by a specialist, be put on a transplant waiting list, and 5 be considered for clinical trials. (See id.) 6 The Response to Plaintiff’s grievance indicates he was “being monitored every 6 7 months with ultrasounds and every 1 to 2 years and [an] EGD 8 [esophagogastroduodenoscopy] for [his] cirrhosis by gastroenterology.” (Id. at 34.) The 9 Response further notes Plaintiff was “treated [for] hepatitis C successfully.” (Id.) Finally, 10 the Response concludes that Plaintiff was not entitled to the relief he sought, including 11 being put on the transplant list and participation “experimental treatments.” (Id.) 12 To the extent Plaintiff alleges Glynn violated his due process rights by improperly 13 processing or denying Healthcare Grievance, Tracking #RJD HC18002418, or any other 14 particular grievance or appeal, this cannot serve as an independent basis for section 1983 15 liability. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (stating prisoners do 16 not have a “separate constitutional entitlement to a specific prison grievance procedure.”) 17 (citation omitted); McRoy v. Roe, 509 Fed. Appx. 660, 660 (9th Cir. 2013) (affirming 18 dismissal of claims arising from defendants’ processing of grievances); Mann v. Adams, 19 855 F.2d 639, 640 (9th Cir. 1988) (stating due process is not violated simply because 20 defendant fails properly to process grievances submitted for consideration); see also Todd 21 v. California Department of Corrections and Rehabilitation, 615 Fed. Appx. 415, 415 22 (9th Cir. 2015) (concluding the district court properly dismissed claim based on improper 23 “processing and handling of […] prison grievances,” since prisoners have no 24 “constitutional entitlement to a specific prison grievance procedure”) (citing Ramirez, 25 334 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545, 26 547 (9th Cir. 2014) (holding district court properly dismissed section 1983 claims against 27 defendants who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 28 860); Daniels v. Aguilera, 2018 WL 558658, at *1 (E.D. Cal. Jan. 24, 2018), report and 1 recommendation adopted sub nom. Daniels v. Aguillera, 2018 WL 1763311 (E.D. Cal. 2 Apr. 12, 2018) (“Because there is no right to any particular grievance process, it is 3 impossible for due process to have been violated by ignoring or failing to properly 4 process prison grievances.”). Simply “‘[r]uling against a prisoner on an administrative 5 complaint does not cause or contribute to the violation.’” Ellington v. Clark, 2010 WL 6 3001427, at *2 (E.D. Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 7 (7th Cir. 2007)); Valdivia v. Tampkins, 2016 WL 7378887, at *6 (C.D. Cal. Dec. 19, 8 2016) (sua sponte dismissing claims predicated upon the alleged improper processing of 9 inmate grievances) 10 Moreover, to the extent Plaintiff also invokes his right to access to the courts, he 11 also fails to state a claim against Glynn. Prisoners have a constitutional right to access to 12 the courts. See Lewis v. Casey, 518 U.S. 343, 346 (1996). But the right is limited to the 13 filing of direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. 14 Claims for denial of access to court may arise from the frustration or hindrance of “a 15 litigating opportunity yet to be gained,” or from the loss of a suit that cannot now be 16 tried. Christopher v. Harbury, 536 U.S. 403, 412–15 (2002); see Silva v. Di Vittorio, 658 17 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between two types of access to court 18 claims: those involving prisoners’ right to affirmative assistance and those involving 19 prisoners’ rights to litigate without active interference”). However, the threshold 20 requirement for any claim based on the denial of access to court is the allegation of an 21 “actual injury.” See Lewis, 518 U.S. at 351–53; Silva, 658 F.3d at 1104. “[A]ctual injury” 22 is defined as “actual prejudice with respect to contemplated or existing litigation, such as 23 the inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see 24 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the 25 “inability to file a complaint or defend against a charge”). 26 While Plaintiff alleges that Glynn improperly processed his inmate grievance, he 27 does not explain how or why this deprivation resulted in any “actual prejudice with 28 respect to contemplated or existing litigation, such as the inability to meet a filing 1 deadline or to present a claim.” See Lewis, 518 U.S. at 348; Iqbal, 556 U.S. at 678; Jones, 2 393 F.3d at 936. The failure to allege an actual injury is fatal to a claim for denial of 3 access to court. See Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to 4 show that a non-frivolous legal claim had been frustrated is fatal.”) (internal quotation 5 marks omitted). 6 For these reasons, Plaintiff also fails to state any plausible due process or access to 7 court claim against Defendant Glynn. See Iqbal, 556 U.S. at 678–79 (citations omitted); 8 28 U.S.C. §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Lopez, 203 F.3d at 1126–27; Rhodes, 621 9 F.3d at 1004. 10 G. Leave to Amend 11 Because the Court finds Plaintiff’s Complaint fails to state any § 1983 claim upon 12 which relief can be granted, it must be dismissed sua sponte and in its entirety pursuant to 13 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison, 668 F.3d at 1112; 14 Wilhelm, 680 F.3d at 1121. Because Plaintiff is proceeding pro se, however, the Court 15 having now provided him with “notice of the deficiencies in his complaint,” will also 16 grant him an opportunity to fix them. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 17 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). As to Plaintiff’s 18 purported claim against Governor Newsome, however, the Court denies leave to amend 19 as futile. Id. (leave to amend is not required if it is “absolutely clear that the deficiencies 20 of the complaint could not be cured by amendment.”) (internal citations omitted). 21 H. Motion to Transfer 22 Plaintiff has also filed a “Request to Transfer Case to the Appropriate District.” 23 (ECF No. 6.) In it, Plaintiff asks that the Court transfer this case to “its proper venue” in 24 the United States District Court for the Eastern District of California. (Id. at 1.) 25 Section 1391(b) of Title 28 of the U.S. Code provides, in relevant part, that a “civil 26 action may be brought in‒‒ (1) a judicial district in which any defendant resides, if all 27 defendants are residents of the State in which the district is located; [or] (2) a judicial 28 district in which a substantial part of the events or omissions giving rise to the claim 1 occurred, or a substantial part of property that is the subject of the action is situated ….” 2 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth 3 Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a district in which is 4 filed a case laying venue in the wrong division or district shall dismiss, or if it be in the 5 interests of justice, transfer such case to any district or division in which it could have 6 been brought.” 28 U.S.C. § 1406(a). 7 As discussed above, Plaintiff alleges constitutional violations arising out of events 8 occurring at PVSP and RJD. (See Compl. at 2–4.) PVSP is located in Coalinga, 9 California, located in Fresno County, which is part of the Eastern District of California. 10 See 28 U.S.C. § 84(b). RJD is located in San Diego County and therefore part of the 11 Southern District of California. See 28 U.S.C. § 84(d). Because events or omissions 12 giving rise to Plaintiff’s claims are alleged to have occurred in the County of San Diego, 13 and several Defendants are alleged to have been employed at RJD and to reside here, 14 venue is proper in the Southern District of California. (See Compl., at 2.) Therefore, 15 Plaintiff’s Motion to Transfer must be DENIED. 16 III. Conclusion and Orders 17 For the reasons discussed, the Court: 18 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 19 (ECF No. 2) and DENIES Plaintiff’s Motion to Transfer Jurisdiction (ECF No. 6). 20 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 21 Plaintiff’s trust account the $52.86 initial filing fee assessed, if those funds are available 22 at the time this Order is executed, and forward whatever balance remains of the full $350 23 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 24 month’s income to the Clerk of Court each time the amount in Plaintiff’s account exceeds 25 $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY 26 IDNETIFIED BY THE NAME AND NUMBER ASSIGNED TO HIS ACTION. 27 3. DIRECTS the Clerk of Court to serve a copy of this Order on Ralph Diaz, 28 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 1 4. DISMISSES this civil action sua sponte based on Plaintiff’s failure to state 2 ||a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1) and 3 1915A(b)(1). 4 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 5 || which to file an Amended Complaint which cures the deficiencies of pleading noted, as 6 all Defendants Akinwuml, Roberts, Sairdo, Sazan, and Glynn only. 7 Plaintiff’'s Amended Complaint must be complete by itself without reference to his 8 || original pleading. Defendants not named and any claim not re-alleged in his Amended 9 || Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 10 || v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (‘[A]n amended 11 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 12 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 13 ||amended pleading may be “considered waived if not repled.”’). 14 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 15 final Order dismissing this civil action based both on Plaintiff’s failure to state a claim 16 upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), 17 |/and his failure to prosecute in compliance with a court order requiring amendment. See 18 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 19 || advantage of the opportunity to fix his complaint, a district court may convert the 20 || dismissal of the complaint into dismissal of the entire action.”). 21 IT IS SO ORDERED. 22 || Dated: June 4, 2020 23 Hgn. J ohn A. Houston 24 United States District Judge 25 26 27 28 17 ee