1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALMALIK RASUWL, Case No. 19cv1832-MMA (WVG)

CDCR #BK-0601,

12

ORDER GRANTING MOTION TO

Plaintiff, 13 PROCEED IN FORMA PAUPERIS; vs. 14 [Doc. No. 5] MARK HAYS, Captain; FRANK 15 CLAMSER, Assistant Sheriff; APRIL

DISMISSING COMPLAINT FOR

16 SIPPERLEY, Sergeant; JUSTIN WHITE,

FAILING TO STATE A CLAIM

Lieutenant, 17 PURSUANT TO Defendants. 28 U.S.C. § 1915(e)(2)(B) AND 18 28 U.S.C. § 1915A(b); 19 20 21 Plaintiff Almalik Rasuwl, a prisoner currently incarcerated at the California 22 Institution for Men (“CIM”), and proceeding pro se, has filed a civil rights complaint 23 pursuant to 42 U.S.C. § 1983. See Compl., Doc. No. 1. In addition, Plaintiff has filed a 24 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. 25 No. 5. In his Complaint, Plaintiff alleges that his constitutional rights were violated when 26 he was a pre-trial detainee housed at the San Diego Central Jail (“SDCJ”). 27 I. Motion to Proceed IFP 28 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 5 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 6 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 7 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 8 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 9 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 10 2002). 11 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 12 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 13 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 14 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 15 trust account statement, the Court assesses an initial payment of 20% of (a) the average 16 monthly deposits in the account for the past six months, or (b) the average monthly 17 balance in the account for the past six months, whichever is greater, unless the prisoner 18 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 19 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 20 preceding month’s income, in any month in which his account exceeds $10, and forwards 21 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 22 In support of his IFP Motion, Plaintiff has submitted a Prison Certificate signed by 23 a trust account official at CIM, together with a certified copy of his CDCR Inmate 24

25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 27 Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 Statement Report showing his trust account activity at the time of filing. See Doc. No. 5 2 at 5-6; see also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. 3 These statements show that Plaintiff carried an average monthly balance of $84.53, and 4 had $54.14 in average monthly deposits to his account over the 6-month period 5 immediately preceding the filing of his Complaint. He had an available balance of 6 $36.18 at the time of filing. See Doc. No. 5 at 6. 7 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP 8 and assesses his initial partial filing fee to be $16.91 pursuant to 28 U.S.C. § 1915(b)(1). 9 However, the Court will direct the Secretary of the CDCR, or his designee, to 10 collect the initial fee assessed only if sufficient funds are available in Plaintiff’s account 11 at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no 12 event shall a prisoner be prohibited from bringing a civil action or appealing a civil action 13 or criminal judgment for the reason that the prisoner has no assets and no means by 14 which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 15 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of 16 a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 17 available to him when payment is ordered.”). The remaining balance of the $350 total 18 fee owed in this case must be collected by the agency having custody of the prisoner and 19 forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2). 20 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 21 A. Standard of Review 22 Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the PLRA 23 also obligates the Court to review complaints filed by all persons proceeding IFP and by 24 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 25 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 26 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 27 practicable after docketing,” and ideally before the service of process upon any 28 Defendant. See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court 1 must sua sponte dismiss complaints, or any portions thereof, which are frivolous, 2 malicious, fail to state a claim, or which seek damages from defendants who are immune. 3 See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); 4 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 5 § 1915A(b)). “The purpose of § 1915[] is to ‘ensure that the targets of frivolous or 6 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 7 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 8 680, 681 (7th Cir. 2012)). 9 All complaints must contain “a short and plain statement of the claim showing that 10 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 11 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 12 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 13 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 14 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 15 requires the reviewing court to draw on its judicial experience and common sense.” Id. 16 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 17 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 18 “When there are well-pleaded factual allegations, a court should assume their 19 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 20 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 21 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 22 allegations of material fact and must construe those facts in the light most favorable to 23 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 24 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 25 While the court “ha[s] an obligation where the petitioner is pro se, particularly in 26 civil rights cases, to construe the pleadings liberally and to afford the petitioner the 27 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 28 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 1 elements of claims that were not initially pled.” Ivey v. Board of Regents of the 2 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 B. Plaintiff’s Allegations 4 Plaintiff’s factual allegations are far from clear. Plaintiff appears to allege that he 5 had been prescribed medication for his “P.T.S.D., depression, [and] anxiety medications” 6 prior to being housed at the SDCJ. Compl., ECF No. 1, at 3. However, after Plaintiff 7 was housed at SDCJ, he claims that he has not been provided his medication. Id. As a 8 result, Plaintiff alleges he “could not sleep because of reoccurring nightmares.” Id. 9 On June 4, 2019, Plaintiff claims he “witnessed a mutual combat fight” for which 10 he “requested trauma counseling.” Id. at 4. At the time of this fight, Plaintiff alleges that 11 he had not had his “PTSD medication” for five (5) days. Id. Plaintiff claims that he 12 made two to three “sick call” requests but they went ignored until he was “transferred to 13 Vista Veteran Module.” Id. On July 2, 2019, Plaintiff was “put back” on his medications 14 but “at a lower dose because of 30 day break.”2 Id. 15 C. 42 U.S.C. § 1983 16 “Section 1983 creates a private right of action against individuals who, acting 17 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 18 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 19 substantive rights, but merely provides a method for vindicating federal rights elsewhere 20 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 21 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 22 deprivation of a right secured by the Constitution and laws of the United States, and (2) 23 that the deprivation was committed by a person acting under color of state law.” Tsao v. 24 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 25 D. Cruel and Unusual Punishment claims 26

27 2 According to the CDCR’s Public Inmate Locator System, Plaintiff has been housed in the CDCR since 28 1 A pretrial detainee’s claim of the denial of the right to adequate medical or mental 2 health care is analyzed under an objective deliberate indifference standard. See Gordon 3 v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). The elements of such a claim 4 are: “(i) the defendant made an intentional decision with respect to the conditions under 5 which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk 6 of suffering serious harm; (iii) the defendant did not take reasonable available measures 7 to abate that risk, even though a reasonable official in the circumstances would have 8 appreciated the high degree of risk involved—making the consequences of the 9 defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused 10 the plaintiff’s injuries.” Id. at 1125. “With respect to the third element, the defendant’s 11 conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts 12 and circumstances of each particular case.’” Id. (quoting Castro v. City of Los Angeles, 13 833 F.3d 1060, 1071 (9th Cir. 2016)). A plaintiff must “prove more than negligence but 14 less than subjective intent—something akin to reckless disregard.” Id. (quoting Castro, 15 833 F.3d at 1071). The “mere lack of due care” is insufficient. Id. (internal quotation 16 omitted). 17 Here, Plaintiff’s allegations fall far short of stating a claim of inadequate mental 18 health care and he fails to provide any adequate description of the individuals whom he 19 claims denied him adequate medical care. Plaintiff lists a number of Defendants in the 20 caption of his Complaint but none of these Defendants are referred to in the body of the 21 Complaint itself. It appears that Plaintiff is alleging that unnamed jail officials delayed in 22 providing medication that he received prior to being incarcerated. However, any delay in 23 providing an appropriate course of treatment does not by itself show deliberate 24 indifference, unless the delay is alleged have caused harm. See McGuckin v. Smith, 974 25 F.2d 1050, 1060 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. 26 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); Shapley v. Nevada Bd. of State Prison 27 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Here, Plaintiff simply offers no specific 28 factual allegations about the interactions he had with specific jail medical staff nor does 1 he identify any staff member by name in the body of his Complaint. 2 Because Plaintiff’s inadequate medical care claims currently fails to meet any of 3 these pleading requirements, these claims must be dismissed sua sponte pursuant to 28 4 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 5 E. Supervisorial vs. Individual Liability 6 To the extent that Plaintiff may be seeking to hold the named Defendants liable in 7 their supervisory capacity, the Court finds Plaintiff fails to state a claim against any of the 8 named Defendants. These type of broad and generalized claims fails to plausibly show 9 how, or to what extent, Defendants may be held individually liable for violating 10 Plaintiff’s constitutional rights. See Iqbal, 556 U.S. at 676-77; Jones v. Comm’ty Redev. 11 Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff 12 must “allege with at least some degree of particularity overt acts which defendants 13 engaged in” in order to state a claim). 14 Plaintiff’s Complaint alleges that he witnessed a brutal assault to which he has 15 suffered psychological harm. It also appears that he is seeking to hold Defendants liable 16 for failing to prevent this assault. However, “Plaintiff must plead that each Government- 17 official defendant, through [his] own individual actions, has violated the Constitution” in 18 order to plead a plausible claim for relief. Id.; see also Crowley v. Bannister, 734 F.3d 19 967, 977 (9th Cir. 2013) (supervisor may be held liable under §1983 only if there is “a 20 sufficient causal connection between the supervisor’s wrongful conduct and the 21 constitutional violation”) (citations and internal quotation marks omitted); Fayle v. 22 Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (when a named defendant holds a 23 supervisorial position, the causal link between the defendant and the claimed 24 constitutional violation must be specifically alleged); Victoria v. City of San Diego, 326 25 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) (“Liability under § 1983 arises only upon a 26 showing of personal participation by the defendant.”). 27 F. Americans with Disabilities Act 28 Plaintiff also seeks to hold Defendants liable for his claims that he brings pursuant 1 to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. See Compl. at 5. 2 The ADA applies in the prison and jail context. See 42 U.S.C. § 12131(1)(B); U.S. v. 3 Georgia 546 U.S. 151, 154 (2006). In order to state a claim under Title II of the ADA, 4 however, a plaintiff must allege: 5 (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to participate in or receive the benefit of some public entity’s services, 6 programs, or activities;’ (3) he ‘was either excluded from participation in or 7 denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity;’ and (4) ‘such 8 exclusion, denial of benefits, or discrimination was by reason of [his] 9 disability.’

10

11 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citing 12 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (quoting Thompson v. 13 Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)). 14 Plaintiff may not pursue an ADA claim against any of the individually named 15 Defendants, however, because there is no individual liability under Title II. See Heinke v. 16 County of Tehama Sheriff’s Dept., No. CVI S-12-2433 LKK/KJN, 2013 WL 3992407, at 17 *7 (E.D. Cal. Aug.1, 2013). The ADA’s definition of “public entity” does not include 18 individuals. See Hardwick v. Curtis Trailers, Inc., 896 F. Supp. 1037, 1038-39 (D. Or. 19 1995) (individual liability is precluded under ADA Title II) (citing Miller v. Maxwell’s 20 Intern., Inc., 991 F.2d 583 (9th Cir. 1993)); see also Alsbrook v. City of Maumelle, 184 21 F.3d 999, 1005 n.8 (8th Cir. 1999); 42 U.S.C. § 12131(1); Vinson v. Thomas, 288 F.3d 22 1145 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 23 against a State official in [his or] her individual capacity to vindicate rights created by 24 Title II of the ADA ...”); Weathers v. Hagemeister-May, No. 1:13-CV-01932-AWI, 2014 25 WL 309444, at *4 (E.D. Cal. Jan. 28, 2014). Accordingly, Plaintiff’s Complaint fails to 26 state an ADA claim upon which relief can be granted. 27 G. Leave to Amend 28 For all these reasons, the Court finds Plaintiff’s Complaint fails to state a claim 1 upon which § 1983 relief can be granted, and dismisses it sua sponte in its entirety 2 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 3 1126-27; Rhodes, 621 F.3d at 1004. However, having now provided him with “notice of 4 the deficiencies in his complaint,” the Court will also grant Plaintiff an opportunity to fix 5 them, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik 6 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 7 III. Conclusion and Orders 8 Based on the foregoing, the Court: 9 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 10 (Doc. No. 5). 11 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 12 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 13 monthly payments from his account in an amount equal to twenty percent (20%) of the 14 preceding month’s income and forwarding those payments to the Clerk of the Court each 15 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 16 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 17 ASSIGNED TO THIS ACTION. 18 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 19 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 20 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 21 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 22 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 23 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 24 Amended Complaint must be complete by itself without reference to his original 25 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 26 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 27 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 28 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 1 || Moting that claims dismissed with leave to amend which are not re-alleged in an 2 ||amended pleading may be “considered waived if not repled.”). 3 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 4 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to 5 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 6 1915A(b), and his failure to prosecute in compliance with a court order requiring 7 |{amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 8 || does not take advantage of the opportunity to fix his complaint, a district court may 9 convert the dismissal of the complaint into dismissal of the entire action.”). 10 5. The Clerk of Court is directed to mail Plaintiff a copy of the court approved 11 || civil rights complaint form for his use in amending. 12 IT IS SO ORDERED. 13 || DATE: October 29, 2019 _Meityeh Ub = Llib 14 HON. MICHAEL M. ANELLO United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10