1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KOBE MAYNARD, Case No.: 24cv0632-DMS (SBC)

CDCR #BV-6222,

12

ORDER:

Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS, and 15 WARDEN GUZMAN, et al., 16 Defendants. (2) DISMISSING COMPLAINT WITH

LEAVE TO AMEND PURSUANT TO

17 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 18 19 On March 29, 2024, Plaintiff Kobe Maynard, a state prisoner proceeding pro se, 20 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 claiming he was provided 21 inadequate medical care while housed at Centinela State Prison in Imperial, California. 22 (ECF No. 1.) The Complaint was accompanied by a Motion to Proceed In Forma Pauperis 23 (“IFP”). (ECF No. 2.) On April 17, 2024, the Court denied Plaintiff’s IFP motion without 24 prejudice and dismissed this action for failure to satisfy the filing fee requirement. (ECF 25 No. 3.) Plaintiff has now filed a renewed IFP motion. (ECF No. 4.) 26 I. Motions to Proceed IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 2 although the administrative fee does not apply to persons granted leave to proceed IFP. 3 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 4 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 7 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 8 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 12 for the past six months, or (b) the average monthly balance in the account for the past six 13 months, whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 14 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 15 must pay any remaining balance in “increments” or “installments,” regardless of whether 16 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 17 Plaintiff’s prison certificate shows he had an average monthly balance of $123.83 18 and average monthly deposits of $113.43 for the 6-months preceding the filing of this 19 action, and an available balance of $11.21. (ECF No. 4 at 5.) The Court GRANTS 20 Plaintiff’s motion to proceed IFP and declines to assesses the initial partial filing fee of 21 $24.76 because it appears Plaintiff has insufficient funds to pay it. See Taylor v. Delatoore, 22 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety- 23 valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . 24 due to the lack of funds available to him when payment is ordered.”) The Court directs the 25 Secretary of the CDCR or his designee to collect and forward to the Clerk of Court the 26 $350 balance of the filing fee required by 28 U.S.C. § 1914 pursuant to the installment 27 payment provisions of 28 U.S.C. § 1915(b)(1). 28 / / / 1 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer 4 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, the Court 5 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 6 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 7 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 8 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 9 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets of frivolous or 10 malicious suits need not bear the expense of responding.” Nordstrom v. Ryan, 762 F.3d 11 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 16 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 17 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 18 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 19 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 20 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual 21 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 22 supported by mere conclusory statements, do not suffice.” Id. “Determining whether a 23 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 24 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 25 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 26 accusation[s]” fall short of meeting this plausibility standard. Id. 27 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 28 acting under color of state law, violate federal constitutional or statutory rights.” 1 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 2 source of substantive rights, but merely provides a method for vindicating federal rights 3 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation 4 marks omitted). 5 B. Allegations in the Complaint 6 Plaintiff alleges that on July 24, 2021, while housed at Centinela, he injured his ankle 7 playing basketball. (ECF No. 1 at 7-9.) He claims Defendant Licensed Vocational Nurse 8 Harris denied him crutches and prescribed over-the-counter pain medication. (Id. at 7.) 9 Two days later an x-ray of the ankle revealed an avulsion fracture of the medial malleolus 10 with a chronic deformity. (Id.) Plaintiff received an MRI on October 8, 2021, which 11 showed “chronic deformity of the ankle, which may represent reflex sympathetic 12 dystrophia/complex regional pain syndrome. Tiny ankle joint effusion, partial thickness 13 tearing Achilles tendon, tibialis tendon tendonitis.” (Id. at 7, 12.) He claims Defendant 14 Orthopedic Doctor Amory saw no injury on the MRI and prescribed physical therapy, and 15 thereby “contributed [to] a misdiagnosis . . . by failing to inquire into essential facts that 16 are necessary to make a professional judgement and delaying treatment.” (Id.) 17 On September 10, 2021, Plaintiff went to Tri-City Medical Center on an unrelated 18 issue where he fell; he was admitted to the emergency room and given a cam boot to wear. 19 (Id. at 12.) On September 15, 2021, Defendant “P&S” Dr. Duenas placed Plaintiff “into 20 an unsafe condition that posed an unreasonable risk of serious damage to my future health 21 [by] conveying wrong rehabilitative methods and delaying access to treatment, failing to 22 conduct an adequate examination causing unnecessary and wanton infliction of pain 23 resulting in permanent physical damage.” (Id. at 19.) During his transportation to the Tri- 24 City Medical Center on September 15, 2021, Defendant Correctional Officer John Doe 1 25 “vigorously” placed Plaintiff in a wheelchair, and once inside the hospital Defendant 26 Correctional Officer John Doe 2 removed Plaintiff from the wheelchair and forced him to 27 walk, causing him to fall. (Id. at 22-23.) Plaintiff alleges Defendant Tri-City Medical 28 Center “failed to summon medical assistance or provide adequate training and or 1 supervision for their employee” Dr. Amory. (Id. at 24.) He alleges Defendant Warden 2 Guzman “is appointed to oversee the safety and security of the institution an[d] personally 3 violated my rights by neglecting to properly train his subordina[tes].” (Id. at 3.) He claims 4 the Defendants violated his rights under the Eighth and Fourteenth Amendments. 5 C. Analysis 6 Prisoner medical care may amount to cruel and unusual punishment in violation of 7 the Eighth Amendment, as applied to the States through the Fourteenth Amendment, when 8 medical professionals are “deliberately indifferent” to an inmate’s “serious” medical needs. 9 Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference ‘may appear when 10 prison officials deny, delay or intentionally interfere with medical treatment, or it may be 11 shown by the way in which prison physicians provide medical care.’” Colwell v. Bannister, 12 763 F.3d 1060, 1066 (9th Cir. 2014), quoting Hutchinson v. United States, 838 F.2d 390, 13 394 (9th Cir. 1988). 14 “[A] prison official violates the Eighth Amendment when two requirements are met. 15 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 16 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 17 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently 18 culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.” 19 Id., quoting Wilson, 501 U.S. at 302-03. A prison official must “know[] of and disregard[] 20 an excessive risk to inmate health or safety; the official must both be aware of facts from 21 which the inference could be drawn that a substantial risk of serious harm exists, and he 22 must also draw the inference.” Id. at 837. 23 The allegations in the Complaint with respect to the serious medical need prong in 24 relation to Plaintiff’s ankle injury, which required transportation to an outside hospital for 25 treatment, are sufficient to survive the “low threshold” of screening required by 28 U.S.C. 26 §§ 1915(e)(2) & 1915A(b). Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Doty v. 27 County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of a ‘serious’ medical 28 need include (1) the existence of an injury that a reasonable doctor would find important 1 and worthy of comment or treatment, (2) the presence of a medical condition that 2 significantly affects an individual’s daily activities, and (3) the existence of chronic or 3 substantial pain.”) 4 However, the Complaint as drafted fails to plausibly allege any Defendant was 5 deliberately indifferent to that serious medical need. The deliberate indifference prong of 6 an Eighth Amendment violation “is satisfied by showing (a) a purposeful act or failure to 7 respond to a prisoner’s pain or possible medical need and (b) harm caused by the 8 indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A prison official can 9 be held liable only if he “knows of and disregards an excessive risk to inmate health or 10 safety; the official must both be aware of facts from which the inference could be drawn 11 that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 12 511 U.S. at 837. The Eighth Amendment is violated when a prison official, acting with 13 deliberate indifference, exposes a prisoner to a sufficiently “substantial risk of serious 14 harm” to his health. Id. at 843. 15 Plaintiff alleges Defendant Nurse Harris denied him crutches and prescribed over- 16 the-counter pain medication after he injured his ankle, but did so two days before he 17 received an x-ray and two weeks before he received an MRI. (ECF No. 1 at 7.) Plaintiff 18 does not plausibly allege Nurse Harris knew of and deliberately disregarded a serious need 19 for treatment other than crutches and over-the-counter pain medication. “Prison officials 20 are deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 21 intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th 22 Cir. 2002) (internal quote marks omitted). However, a plaintiff can only establish 23 deliberate indifference from such a delay where there is a purposeful act or failure to act 24 by the prison official that results in harm. Jett, 439 F.3d at 1096; Castro v. County of Los 25 Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016) (“A prison official cannot be found liable 26 under the Cruel and Unusual Punishment Clause [of the Eighth Amendment] . . . ‘unless 27 the official knows of and disregards an excessive risk to inmate health or safety; the official 28 must both be aware of facts from which the inference could be drawn that a substantial risk 1 of serious harm exists, and he must also draw the inference.’”), quoting Farmer, 511 U.S. 2 at 837. Even if the Complaint plausibly alleges Nurse Harris should have realized merely 3 providing Plaintiff with crutches and over-the-counter pain medication presented a risk to 4 Plaintiff because his injury required different treatment (which Plaintiff does not identify), 5 he does not plausibly allege Nurse Harris actually drew an inference that treating him with 6 crutches and over-the-counter pain medication prior to an x-ray and an MRI placed him at 7 a substantial risk of serious harm, as opposed to merely alleging at most a disagreement 8 with the type of treatment he received amounting to negligence or medical malpractice. 9 See Colwell, 763 F.3d at 1068 (“A difference of opinion between a physician and the 10 prisoner - or between medical professionals - concerning what medical care is appropriate 11 does not amount to deliberate indifference.”); Farmer, 511 U.S. at 835 (“[D]eliberate 12 indifference describes a state of mind more blameworthy than negligence” and “more than 13 ordinary lack of due care for the prisoner’s interests or safety.”) The Complaint does not 14 state an Eighth Amendment deliberate indifference claim against Defendant Nurse Harris. 15 Plaintiff alleges Defendant Dr. Duenas placed him “into a unsafe condition that 16 posed an unreasonable risk of serious damage to my future health [by] conveying wrong 17 rehabilitative methods and delaying access to treatment, failing to conduct an adequate 18 examination causing unnecessary and wanton infliction of pain resulting in permanent 19 physical damage.” (ECF No. 1 at 19.) He claims Defendant Orthopedic Doctor Amory 20 saw no injury on the MRI and prescribed physical therapy, and thereby “contributed [to] a 21 misdiagnosis “by failing to inquire into essential facts that are necessary to make a 22 professional judgement and delaying treatment.” (Id. at 12.) These allegations fail to 23 plausibly allege either Defendant was aware of and deliberately disregarded a risk to 24 Plaintiff. Rather, they allege in a conclusory manner that Plaintiff was not provided the 25 level of medical care he believed was necessary, but without identifying what medical care 26 he was denied or should have received. See Iqbal, 556 U.S. at 678 (the “mere possibility 27 of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall 28 short of meeting th[e] plausibility standard); Colwell, 763 F.3d at 1068 (“A difference of 1 opinion between a physician and the prisoner - or between medical professionals - 2 concerning what medical care is appropriate does not amount to deliberate indifference.”); 3 Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind more 4 blameworthy than negligence” and “more than ordinary lack of due care for the prisoner’s 5 interests or safety.”) The Complaint fails to state an Eighth Amendment deliberate 6 indifference claim against Defendants Dr. Duenas or Dr. Amory. 7 Plaintiff alleges that during his transportation to the Tri-City Medical Center 8 Defendant Correctional Officer John Doe 1 “vigorously” placed him in a wheelchair, and 9 once inside the hospital Defendant Correctional Officer John Doe 2 removed him from the 10 wheelchair and forced him to walk, causing Plaintiff to fall. (ECF No. 1 at 22-23.) These 11 allegations are conclusory and devoid of facts as to precisely what actions these Defendants 12 took or what information they had about Plaintiff’s medical condition. See Iqbal, 556 U.S. 13 at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice” to state a claim.); Castro, 833 F.3d at 1068 (“A 15 prison official cannot be found liable under the Cruel and Unusual Punishment Clause [of 16 the Eighth Amendment] . . . ‘unless the official knows of and disregards an excessive risk 17 to inmate health or safety; the official must both be aware of facts from which the inference 18 could be drawn that a substantial risk of serious harm exists, and he must also draw the 19 inference.’”), quoting Farmer, 511 U.S. at 837. The Complaint as drafted presents only 20 conclusory allegations that the John Doe Defendants took actions which placed Plaintiff at 21 a substantial risk of harm, and no allegations they were aware of facts from which a 22 reasonable inference could be drawn that Plaintiff faced a substantial risk to his health or 23 safety in the manner in which he was placed in or removed from his wheelchair or that they 24 actually drew such an inference. The Complaint fails to state an Eighth Amendment 25 deliberate indifference claim against Defendants John Doe 1 and 2. 26 Plaintiff alleges Defendant Warden Guzman “is appointed to oversee the safety and 27 security of the institution an[d] personally violated my rights by neglecting to properly 28 train his subordina[tes].” (ECF No. 1 at 3.) Plaintiff may not rely on a respondeat superior 1 theory of liability under § 1983, but must allege facts which plausibly show each individual 2 Defendant was personally involved in the alleged constitutional violation. See Jones v. 3 Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color of 4 state law to be liable under section 1983 there must be a showing of personal participation 5 in the alleged rights deprivation: there is no respondeat superior liability under section 6 1983.”) A prisoner must allege “(1) that the specific prison official, in acting or failing to 7 act, was deliberately indifferent to the mandates of the eighth amendment and (2) that this 8 indifference was the actual and proximate cause of the deprivation of the inmates’ eighth 9 amendment right to be free from cruel and unusual punishment.” Leer v. Murphy, 844 F.2d 10 628, 634 (9th Cir. 1988). Supervisors may only be held liable if they were “personally 11 involved in the constitutional violation or a sufficient causal connection exists between the 12 supervisor’s unlawful conduct and the constitutional violation.” Lemire v. Cal. Dept. of 13 Corrections & Rehabilitation, 726 F.3d 1062, 1074-75 (9th Cir. 2013). The allegation that 14 Defendant Warden Guzman is responsible for the safety and security of the prison and 15 neglected to properly train his subordinates fails to plausibly allege any unlawful conduct 16 by Warden Guzman, or any conduct at all. And because as stated above the Complaint 17 fails to allege a constitutional violation, it also fails to allege a causal connection between 18 a constitutional violation and unlawful conduct by Warden Guzman. The Complaint fails 19 to plausibly allege an Eighth Amendment violation against this Defendant. Id. 20 Finally, Plaintiff alleges Defendant Tri-City Medical Center “failed to summon 21 medical assistance or provide adequate training and or supervision for their employee” 22 Defendant Dr. Amory. (ECF No. 1 at 24.) Such conclusory allegations are insufficient to 23 state a claim. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause 24 of action, supported by mere conclusory statements, do not suffice” to state a claim.) The 25 Complaint fails to state a claim against Defendant Tri-City Medical Center. 26 Based on the foregoing, Plaintiff’s Complaint is dismissed pursuant to 28 U.S.C. 27 §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 28 680 F.3d at 1121. 1 D. Leave to Amend 2 In light of Plaintiff’s pro se status, the Court grants leave to amend. See Rosati v. 3 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 4 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)] unless ‘it is 5 absolutely clear that the deficiencies of the complaint could not be cured by amendment.’”), 6 quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 7 III. Conclusion and Orders 8 Good cause appearing, the Court: 9 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 4). 10 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 11 Plaintiff’s prison trust account the $350 filing fee by collecting monthly payments from 12 Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding month’s 13 income and forwarding those payments to the Clerk of the Court each time the amount in 14 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 15 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 16 Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 17 942883, Sacramento, California 94283-0001. 18 4. DISMISSES all claims against all Defendants in the Complaint without 19 prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 20 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 21 which to file a First Amended Complaint which cures the deficiencies of pleading noted in 22 this Order with respect to any or all other Defendants. Plaintiff’s First Amended Complaint 23 must be complete by itself without reference to his original Complaint. Defendants not 24 named and any claims not re-alleged in the First Amended Complaint will be considered 25 waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 26 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); 27 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 28 with leave to amend which are not re-alleged in an amended pleading may be “considered 1 || waived if not repled.”) If Plaintiff fails to amend, the Court will dismiss this action for 2 || failure to state a claim and failure to prosecute. See Lira v. Herrera, 427 F.3d 1164, 1169 3 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 4 ||complaint, a district court may convert the dismissal of the complaint into dismissal of the 5 || entire action.”) 6 IT IS SO ORDERED. 7 || Dated: July 2, 2024 em Dh 8 an Yn. Hon. Dana M. Sabraw, Chief Judge ? United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Il