Grady v. Wyatt ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MITCHELL QUINTIN GRADY, Case No.: 3:20-cv-01631-AJB-BGS CDCR #AS-8775, 12 ORDER Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 (ECF No. 2); K. WYATT, J. COVARRUBIAS, 16 Defendants. AND 17 2) DISMISSING COMPLAINT FOR 18 FAILURE TO STATE A CLAIM 19 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. § 20 1915A(b) 21 22 Plaintiff Mitchell Quintin Grady, currently incarcerated at Centinela State Prison 23 (“Centinela”) in Imperial, California, is proceeding pro se in this civil rights action pursuant 24 to 42 U.S.C. Section 1983. (See ECF No. 1, Compl.) Plaintiff alleges that two officials 25 at Centinela violated his Eighth and Fourteenth Amendment rights in connection with his 26 requests for medical care and in the administrative grievance process. 27 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. Section 28 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis 1 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) 2 I. Motion to Proceed In Forma Pauperis 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 8 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 9 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 10 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 11 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 12 dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 13 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, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 18 trust account statement, the Court assesses an initial payment of 20% of (a) the average 19 monthly deposits in the account for the past six months, or (b) the average monthly balance 20 in the account for the past six months, whichever is greater, unless the prisoner has no 21 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 22 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 23 month’s income, in any month in which his account exceeds $10, and forwards those 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does 28 1 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 2 136 S. Ct. at 629. 3 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 4 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 5 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as 6 well as the attached prison certificate verifying his available balances. (See ECF No. 3, at 7 1-3.) These documents show that although he carried an average monthly balance of 8 $16.95 and had $16.67 in average monthly deposits to his trust account for the six months 9 preceding the filing of this action, Plaintiff had an available balance of just $0.01 at the 10 time of filing.2 (See ECF No. 3, at 1, 3.) 11 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 12 declines to impose a partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1) because 13 his prison certificate indicates he may currently have “no means to pay it.” See 28 U.S.C. 14 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 15 civil action or appealing a civil action or criminal judgment for the reason that the 16 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 17 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 18 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 19 the lack of funds available to him when payment is ordered.”). Instead, the Court directs 20 the Secretary of the CDCR, or her designee, to collect the entire $350 balance of the 21 filing fees required by 28 U.S.C. Section 1914 and to forward them to the Clerk of the 22 Court pursuant to the installment payment provisions set forth in 28 U.S.C. 23 Section1915(b)(1). 24 25 26 2 Approximately two weeks after filing his Complaint, Plaintiff filed another trust account statement, 27 this one reflecting the six-month period preceding September 10, 2020. (See ECF No. 4.) This submission was unnecessary, but shows that as of September 10, 2020, Plaintiff still had an available 28 1 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 2 1915A(b) 3 A. Standard of Review 4 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 5 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under 6 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 7 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 8 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 9 (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 10 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to 11 ensure that the targets of frivolous or malicious suits need not bear the expense of 12 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler 13 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 16 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 19 standard applied in the context of failure to state a claim under Federal Rule of Civil 20 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 21 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 23 1121. 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 25 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 26 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 27 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 1 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 2 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 3 B. Plaintiff’s Factual Allegations 4 Plaintiff’s allegations focus on the failure of prison officials to timely provide 5 Plaintiff with “foot orthoses,” which he apparently needs to treat flat feet. (See Compl. at 6 3.) The orthoses are the subject of a “‘high priority’ permanent medical chrono,” and are 7 “very important equipment that needs to be provided on a regular basis.” (See id.) 8 On April 13, 2020, Plaintiff had an appointment with a nurse, Defendant K. Wyatt, 9 who told Plaintiff she would order new orthoses for him. (See id.) A month later, 10 Plaintiff had not received the orthoses, and made another medical request. (See id.) On 11 May 21, 2020, Plaintiff had another appointment with Defendant Wyatt, who told 12 Plaintiff “that she did not put in a new ‘foot orthoses’ [order] . . . and she seemed to not 13 have any recollection of . . . this important matter[.]” (See id.) Wyatt told Plaintiff that 14 he was “‘a young person’” and asked if he knew “‘how many people have flat feet in the 15 world?’” (Id.) Although Plaintiff explained that he was experiencing increased knee 16 pain as a result of not receiving new orthoses, he did not receive them at that time. (See 17 id.) Rather, Defendant Wyatt “le[d] [Plaintiff] to believe that it would take many many 18 months to get new ‘foot orthoses’” if he even got them at all.” (See id. at 4.) Plaintiff 19 contends that these actions constitute denial of medical care and cruel and unusual 20 punishment in violation of his Eighth Amendment rights. (See id. at 3-4.) 21 Plaintiff also alleges that Defendants Wyatt and J. Covarrubias are liable for racial 22 discrimination. Plaintiff contends that when he met with Defendant Wyatt on May 21, 23 2020, she said “in a[n] irritated tone, ‘oh you’re back?’” (See id. at 5.) In Plaintiff’s 24 view, this was a “very notice-able, negative reaction” to the fact that Plaintiff is African- 25 American. (See id.) Plaintiff’s contentions are less clear with respect to Defendant 26 Covarrubias, but Plaintiff seems to allege that Covarrubias “purposely ma[de] [Plaintiff] 27 sound completely ignorant” and like “another dumb black person” by misquoting 28 Plaintiff in Covarrubias’s written response to Plaintiff’s health grievance. (See id.; see 1 also id. at 6.) Plaintiff elaborates on this contention in a claim for fabrication of evidence 2 against Defendant Covarrubias, where he explains that during an interview as part of the 3 grievance process, Covarrubias told Plaintiff that “K. Wyatt, RN had ‘dropped the ball’” 4 on Plaintiff’s first request for orthoses, and that if he had not made another medical 5 request he would not have received any care. (See id. at 6.) According to Plaintiff, 6 Covarrubias “saw fit to confuse the language,” reporting on the health care grievance 7 response that Plaintiff said “‘All I know is that [Wyatt] kept tell me that it was going to 8 take a while before I received the insoles,’” and omitting Covarrubias’s statements about 9 Wyatt’s actions. (See id.) 10 Plaintiff seeks compensatory and punitive damages and an injunction preventing 11 Defendants from retaliation or “causing anymore [sic] harm to the well being of 12 [Plaintiff] ever again.” (Id. at 9.) 13 C. Analysis 14 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 15 elements: (1) that a right secured by the Constitution or laws of the United States was 16 violated, and (2) that the alleged violation was committed by a person acting under the 17 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 18 1035-36 (9th Cir. 2015). 19 1. Eighth Amendment 20 The Eighth Amendment requires that inmates have “ready access to adequate 21 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate 22 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle 23 v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference ‘may appear when prison 24 officials deny, delay or intentionally interfere with medical treatment, or it may be shown 25 in the way in which prison physicians provide medical care.’” Colwell v. Bannister, 763 26 F.3d 1060, 1066 (9th Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 27 (9th Cir. 1988)). “A prison official acts with ‘deliberate indifference . . . only if the [prison 28 official] knows of and disregards an excessive risk to inmate health and safety.’” Toguchi 1 v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 2 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of Los 3 Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under this standard, the prison official 4 must not only ‘be aware of facts from which the inference could be drawn that a substantial 5 risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting 6 Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Inadvertent failures to provide adequate 7 medical care, mere negligence or medical malpractice, delays in providing care (without 8 more), and differences of opinion over what medical treatment or course of care is proper, 9 are all insufficient to constitute an Eighth Amendment violation.” Norvell v. Roberts, No. 10 20-cv-0512 JLS (NLS), 2020 WL 4464454, at *4 (S.D. Cal. Aug. 4, 2020) (citing Estelle, 11 429 U.S. at 105-07; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. 12 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 13 Plaintiff’s Eighth Amendment claims against Defendant Wyatt in Counts 1 and 23 14 must be dismissed. As currently alleged, Plaintiff’s allegations do not rise to the level of 15 deliberate indifference, and instead allege merely negligence or medical malpractice. (See 16 Compl. at 3 (explaining that Defendant Wyatt “seemed to not have any recollection” of 17 having told Plaintiff she would put in an order for new foot orthoses).) In order allege 18 deliberate indifference, Plaintiff must include “further factual enhancement,” Iqbal, 556 19 U.S. at 678, demonstrating that Defendant Wyatt “purposeful[ly] . . . fail[ed] to respond to 20 [his] pain or possible medical need,” and that “harm [was] caused by [this] indifference.” 21 Wilhelm, 680 F.3d at 1122 (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). 22 Further, although Plaintiff alleges that Wyatt insinuated that his condition was not serious 23 because Plaintiff is “‘a young person,’” and said that it would take months to receive the 24 foot orthoses, Plaintiff does not allege that Wyatt refused to provide treatment or order the 25 26 3 Although Plaintiff splits these allegations into two counts, they are subject to the same constitutional 27 analysis under the Eighth Amendment. The right of prisoners to access medical care (the stated basis for Count 1) is derived from the Eighth Amendment’s prohibition against cruel and unusual punishment (the 28 1 orthoses Plaintiff needs or that she refused to provide needed treatment for a non-medical 2 reason. (See Compl. at 3-4.) In the absence of such allegations or other allegations of 3 deliberate indifference on Wyatt’s part, Plaintiff’s Eighth Amendment claims must be 4 dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. 5 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 6 2. Racial Discrimination 7 Count 3 of Plaintiff’s Complaint focuses on alleged instances of racial 8 discrimination by Defendants Wyatt and Covarrubias. Claims of racial discrimination are 9 appropriately reviewed under the equal protection clause of the Fourteenth Amendment, 10 which “commands that no State shall ‘deny to any person within its jurisdiction the equal 11 protection of the laws,’ which is essentially a direction that all persons similarly situated 12 should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 13 (1985). To allege a claim of racial discrimination in violation of the equal protection 14 clause, Plaintiff must allege that Defendants “acted in a discriminatory manner and that 15 the discrimination was intentional.” FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 16 1991) (citations omitted). “In order to state a § 1983 claim based on a violation of the 17 equal protection clause of the Fourteenth Amendment, a plaintiff must establish that 18 defendants acted with intentional discrimination against a class of inmates which includes 19 plaintiff.” Parker v. Kramer, No. CVF025117 AWIDLBP, 2005 WL 1343853, at *6 20 (E.D. Cal. Apr. 28, 2005) (citing Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 21 1985); Henderson, 940 F.2d at 471)). 22 Plaintiff’s racial discrimination claims fail because he has not alleged sufficient 23 “factual content that allows the court to draw the reasonable inference that [Defendants 24 are] liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The actions Plaintiff 25 alleges—Wyatt’s unprofessional remark when Plaintiff returned to ask about his foot 26 orthoses and Covarrubias’s misquotation of Plaintiff in the response to his health care 27 grievance—fall far short of alleging a plausible claim of racial discrimination. (See 28 Compl. at 5.) Plaintiff does not allege any non-conclusory facts suggesting that 1 Defendants acted in a discriminatory manner or that Plaintiff was treated differently from 2 any other inmate, let alone that any discrimination or difference in treatment was 3 intentional or based on race. As a result, Plaintiff’s claim of racial discrimination is 4 dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 5 1915(e)(2); 28 U.S.C. § 1915A(b). 6 3. Fabrication of Evidence 7 Finally, Plaintiff alleges that Defendant Covarrubias fabricated evidence in his 8 written response to Plaintiff’s health care grievance by misquoting Plaintiff and omitting 9 statements made by Covarrubias in an interview that was part of the grievance process. 10 This claim is appropriately analyzed under the Fourteenth Amendment, which 11 provides, among other things, that “[n]o state shall . . . deprive any person of life, liberty, 12 or property, without due process of law.” U.S. Const. amend. XIV, § 1. To state a claim 13 for violation of procedural due process, Plaintiff must allege “‘(1) a liberty or property 14 interest protected by the Constitution; (2) a deprivation of the interest by the government; 15 [and] (3) lack of process.’” See Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) 16 (quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). Although 17 a prisoner is entitled to procedural due process protections in disciplinary proceedings, 18 those protections “adhere only when the disciplinary action implicates a protected liberty 19 interest in some ‘unexpected [manner]’ or imposes an ‘atypical and significant hardship 20 on the inmate in relation to the ordinary incidents of prison life.’” Serrano v. Francis, 21 345 F.3d 1071, 1078 (9th Cir. 2003) (quoting Sandin v. Connor, 515 U.S. 472, 484 22 (1995)). 23 Plaintiff’s allegations fall far short of stating a procedural due process claim. As 24 an initial matter, there is no constitutional right to an effective prison grievance system. 25 See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Even if there were such a 26 right, however, the Court does not understand how it could have been violated on these 27 facts. Plaintiff appears to believe that prison officials cannot paraphrase or summarize a 28 prisoner’s statements in preparing a response to a grievance, and that if they do so in a 1 way that the prisoner disagrees with, then that would violate the Constitution. The Court 2 is not aware of any case holding or suggesting that such a right exists. Similarly, the fact 3 that Covarrubias told Plaintiff in an interview that Wyatt “‘dropped the ball’” does not 4 somehow create a constitutional requirement that Covarrubias’s report include that 5 statement, or that failure to include it would rise to the level of fabrication of evidence. 6 As a result, this claim must also be dismissed for failure to state a claim upon which relief 7 may be granted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b). 8 III. Conclusion and Orders 9 Good cause appearing, the Court: 10 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section 11 1915(a) (ECF No. 2). 12 2. DIRECTS the Secretary of the CDCR, or her designee, to collect from the 13 full $350 filing fee owed by collecting monthly payments from Plaintiff’s account in an 14 amount equal to twenty percent (20%) of the preceding month’s income and forwarding 15 those payments to the Clerk of the Court each time the amount in the account exceeds $10 16 pursuant to 28 U.S.C. Section 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY 17 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 18 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 19 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 20 942883, Sacramento, California 94283-0001. 21 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 22 relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and Section 23 1915A(b)(1). 24 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 25 which to file an Amended Complaint which cures all the deficiencies of pleading noted 26 above. Plaintiff’s Amended Complaint must be complete by itself without reference to his 27 original pleading. Defendants not named and any claim not re-alleged in his Amended 28 Complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, 1 ||Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 2 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 3 ||2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 4 ||amended pleading may be “considered waived if not repled.”’). 5 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 6 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to state 7 claim upon which relief can be granted pursuant to 28 U.S.C. Sections 1915(e)(2)(B)(ii) 8 |}and 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 9 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 10 || not take advantage of the opportunity to fix his complaint, a district court may convert the 11 || dismissal of the complaint into dismissal of the entire action.”’). 12 IT IS SO ORDERED. 13 ||Dated: October 29, 2020 © 14 Hon. Anthony J.Battaglia 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 Il