1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 ANDREW OLLISON, Case No.: 3:20-cv-00837-WQH-WVG

9

ORDER:

Plaintiff, 10 v. (1) GRANTING PLAINTIFF’S 11

MOTION TO PROCEED IN FORMA

12 PAUPERIS [ECF No. 2] COUNTY OF SAN DIEGO, et al., 13

AND

14 Defendants. (2) SUA SPONTE DISMISSING 15

COMPLAINT FOR FAILING TO

16 STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) 17 18 19 Andrew Ollison (“Plaintiff”), formerly detained or imprisoned1 at the San Diego 20 Central Jail (“SDCJ”) and George Bailey Detention Facility (“GBDF”) in San Diego, 21 California, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., 22 ECF No. 1 at 4-5. Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) to 23 commence a civil action when he filed his Complaint; instead, he has filed a Motion to 24 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. 25

26 27 1 According to Plaintiff’s Complaint and his Motion to Proceed In Forma Pauperis, he is currently out of custody and living in San Diego, California. See ECF No. 1 at 10; ECF 28 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay 5 the entire fee only if he or she is granted leave to proceed IFP pursuant to 28 U.S.C. 6 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Section 1915(a)(2) 7 requires all persons seeking to proceed without full prepayment of fees to file an affidavit 8 that includes a statement of all assets possessed and demonstrates an inability to pay. See 9 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). 10 “Unlike other indigent litigants, prisoners proceeding in forma pauperis must pay 11 the full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison 12 Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002) (citing 28 13 U.S.C. § 1915(b)(1); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002)). As defined 14 by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility who is 15 accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of 16 criminal law or the terms and conditions of parole, probation, pretrial release, or 17 diversionary program.” 28 U.S.C. § 1915(h). 18 However, persons who file suit after having been released from custody are no 19 longer “prisoners” as defined by the PLRA, and are therefore not subject to 28 U.S.C. 20 § 1915(b), 42 U.S.C. § 1997e(a)’s pre-suit administrative exhaustion requirements, or 28 21 U.S.C. § 1915(g)’s “three-strikes” provision. See Page v. Torrey, 201 F.3d 1136, 1140 (9th 22 Cir. 2000) (person confined under California’s Sexually Violent Predator Law, while a “a 23 ‘prisoner’ within the meaning of the PLRA when he served time for his conviction, [ ] 24 ceased being a ‘prisoner’ when he was released from the custody of the Department of 25 Corrections”); Jackson v. Fong, 870 F.3d 928, 934-35 (9th Cir. 2017) (former prisoner 26 incarcerated when he filed his civil rights action but released by the time he filed an 27 amended complaint was not subject to the PLRA’s exhaustion requirement); Moore v. 28 Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011) (noting that § 1915(g)’s 1 three-strikes rule does not apply to a civil action of appeal filed after former prisoner was 2 released on parole). 3 Plaintiff does not appear to have been a “prisoner” as defined by the PLRA at the 4 time he filed this action; therefore, neither the filing fee provisions of 28 U.S.C. § 1915(b), 5 nor § 1915(g)’s “three strikes” bar apply to this case. See Andrews v. King, 398 F.3d 1113, 6 1122 (9th Cir. 2005) (“[T]he scope of § 1915 is narrowed to plaintiffs who are in custody 7 as the result of a conviction or who have been detained for an alleged criminal law violation 8 . . . .”), as amended; Moore, 657 F.3d at 892. 9 Accordingly, the Court has reviewed Plaintiff’s current affidavit of assets, just as it 10 would for any other non-prisoner litigant seeking IFP status, finds it is sufficient to show 11 that he is unable to pay the fees or post securities required to maintain this action, and 12 GRANTS his Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 13 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2) 14 A. Standard of Review 15 Because Plaintiff is proceeding IFP, Plaintiff’s Complaint is still subject to sua 16 sponte review, and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim 17 upon which relief may be granted, or seek[s] monetary relief from a defendant immune 18 from such relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 19 1763 (2015) (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any 20 time if the court determines that—(A) the allegation of poverty is untrue; or (B) the action 21 or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may 22 be granted” (emphasis omitted) (quoting 28 U.S.C. § 1915(e)(2)); Lopez v. Smith, 203 F.3d 23 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a 24 district court to dismiss an in forma pauperis complaint that fails to state a claim.”); 25 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the 26 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 2 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 3 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6)”). Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure require a 6 complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief 7 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 8 B. Plaintiff’s Allegations 9 Plaintiff’s Complaint names the County of San Diego, Sheriff William D. Gore, 10 Captain Buchanan, and Deputy John Doe 1 as Defendants. See Compl., ECF No. 1 at 2. 11 On or about April 25, 2020, Deputy Doe checked Plaintiff’s temperature, which read 12 100 degrees Fahrenheit. Id. at 3. When Plaintiff requested “medical help in these COVID- 13 19, dangerous times,” deputies told him to “just drink some water and go to sleep.” Id. As 14 a result, Plaintiff suffered “unnecessary wanton pain.” Id. Plaintiff does not say whether 15 these events occurred at SDCJ or GBDF, and he does not claim to have actually contracted 16 COVID-19 while in custody. Plaintiff seeks $1 million is damages against Sheriff Gore 17 and Captain Buchanan for having “show[n] deliberate indifference” to his “serious medical 18 needs.” Id. 19 C. 42 U.S.C. § 1983 20 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 21 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 22 1063, 1067 (9th Cir. 2006) (citation omitted). To state a claim under 42 U.S.C. § 1983, a 23 plaintiff must allege two essential elements: (1) that a right secured by the Constitution or 24 laws of the United States was violated, and (2) that the alleged violation was committed by 25 a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe 26 v. Frye, 789 F.3d 1030, 1035-36 (9th Cir. 2015). 27 / / / 28 / / / 1 D. Discussion 2 1. Supervisor Liability 3 Plaintiff claims that Sheriff Gore and Captain Buchanan both acted “under the laws 4 of California” and “showed deliberate indifference to [his] serious medical needs.” See 5 Compl., ECF No. 1 at 2-3. He includes no further factual allegations describing Gore’s or 6 Buchanan’s individual acts or omissions. Such broad and generalized allegations fail to 7 show how, or to what extent, Gore and Buchanan may be held individually liable for any 8 constitutional injury. See Iqbal, 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of 9 L.A., 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least 10 some degree of particularity overt acts which defendants engaged in” in order to state a 11 claim). As pleaded, it appears Plaintiff seeks to hold Gore and Buchanan liable for the acts 12 of subordinates. But “vicarious liability is inapplicable to . . . § 1983 suits.” Iqbal, 556 U.S. 13 at 676. Instead, “Plaintiff must plead that each Government-official defendant, through 14 [his] own individual actions, has violated the Constitution” in order to plead a plausible 15 claim for relief. Id.; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) 16 (supervisor may be held liable under §1983 only if there is “a sufficient causal connection 17 between the supervisor’s wrongful conduct and the constitutional violation”) (citations and 18 internal quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 19 (when a named defendant holds a supervisorial position, the causal link between the 20 defendant and the claimed constitutional violation must be specifically alleged); Victoria 21 v. City of San Diego, 326 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) (“Liability under § 1983 22 arises only upon a showing of personal participation by the defendant.”). 23 2. Liability of the County of San Diego 24 Plaintiff’s claims against the County of San Diego are also insufficient. In order to 25 establish a county’s liability pursuant to 42 U.S.C. § 1983, “[a] plaintiff[] must show that 26 the challenged conditions were part of a policy, custom or practice officially adopted by 27 defendants.” Upshaw v. Alameda Cty., 377 F. Supp. 3d 1027, 1032 (N.D. Cal. March 27, 28 3019) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). A plaintiff 1 must also allege that “the policy or custom “evince[s] a ‘deliberate indifference’ to the 2 constitutional right and [is] the ‘moving force behind the constitutional violation.’” Id., 3 (citing Rivera v. Cty. of L.A., 745 F.3d 384, 389 (9th Cir. 2014)). “Mere negligence or 4 accident” are not sufficient. Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015). Here, 5 Plaintiff fails to allege that any staff at SDCJ or GBDF acted pursuant to a county policy 6 or custom. Therefore, Plaintiff fails to state a claim upon which relief may be granted 7 pursuant to § 1983 as to the County of San Diego. 8 3. Inadequate Medical Care Claims 9 “Inmates who sue prison officials for injuries suffered while in custody may do so 10 under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet 11 convicted, under the Fourteenth Amendment’s Due Process Clause.” Castro v. Cty. of L.A., 12 833 F.3d 1060, 1067-68 (9th Cir. 2016). Under either Amendment, Plaintiff must allege 13 facts sufficient to show that Defendants acted with “deliberate indifference” in order to 14 state a plausible claim for relief. Id. at 1068; Iqbal, 556 U.S. at 678; Gordon v. Cty. of 15 Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). While Plaintiff invokes the “Cruel and 16 Unusual Punishments” Clause, it is unclear whether he was a pretrial detainee or a 17 convicted prisoner at the time he claims to have been denied medical care. See Compl., 18 ECF No. 1 at 2-3. Therefore, the Court will analyze his claim under both Eighth and 19 Fourteenth Amendment standards. 20 First, where a prisoner’s constitutional claim is one for inadequate medical care, 21 under the Eighth Amendment, he must allege “acts or omissions sufficiently harmful to 22 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 23 106 (1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The plaintiff must first 24 establish a “serious medical need by demonstrating that [the] failure to treat [his] condition 25 could result in further significant injury or the unnecessary and wanton infliction of pain.” 26 Jett, 439 F.3d at 1096 (citation omitted). A medical need is serious “if the failure to treat 27 the prisoner’s condition could result in further significant injury or the ‘unnecessary and 28 wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) 1 (quoting Estelle, 429 U.S. at 104), overruled on other grounds by WMX Techs., Inc. v. 2 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). 3 Next, Plaintiff must show that the defendant’s response to his objectively serious 4 medical need was deliberately indifferent. Jett, 439 F.3d at 1096. To establish deliberate 5 indifference, a prisoner must allege facts to show: (1) a purposeful act or failure to respond 6 to the prisoner’s pain or possible medical need; and (2) harm caused by the indifference. 7 Id. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 8 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of 9 the facts from which the inference could be drawn that a substantial risk of serious harm 10 exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. 11 Brennan, 511 U.S. 828, 837 (1994)). “If a prison official should have been aware of the 12 risk, but was not, then the official has not violated the Eighth Amendment, no matter how 13 severe the risk.” Id. (quoting Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1188 (9th Cir. 14 2002). 15 In this case, Plaintiff merely states that he was running a fever and that deputies told 16 him “to just drink some water and go to sleep.” See Compl., ECF No. 1 at 3. Without more, 17 Plaintiff fails to allege facts sufficient to meet the Eighth Amendment’s objective 18 requirements. See Jett, 439 F.3d at 1096 (a medical need is serious when the failure to treat 19 it could result in significant injury or the unnecessary and wanton infliction of pain). In 20 addition, Plaintiff does not allege any facts to show that Deputy Doe or any other SDCJ or 21 GBDF staff “kn[e]w of and disregard[ed] an excessive risk to [his] health or safety.” 22 Farmer, 511 U.S. at 837; Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may 23 be imposed on individual defendant under § 1983 only if plaintiff can show that defendant 24 proximately caused deprivation of federally protected right). Therefore, the Complaint as 25 currently alleged lacks the “further factual enhancement” required to plausibly show that 26 Deputy Doe’s “purposeful act[s] or failure[s] to respond to [Plaintiff’s] . . . medical need,” 27 or any “harm caused by [this] indifference.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. 28 v. Twombly, 550 U.S. 544, 555 (2007)); Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d 1 at 1096). Instead, Plaintiff offers only the type of “labels and conclusions” or “a formulaic 2 recitation of the elements of a[n] [Eighth Amendment] cause of action [that] will not do.” 3 Iqbal, 662 U.S. at 678 (citing Twombly, 550 U.S. at 555). 4 To the extent Plaintiff’s medical care claims may instead arise under the Fourteenth 5 Amendment’s Due Process Clause, they “must be evaluated under an objective deliberate 6 indifference standard.” Gordon, 888 F.3d at 1125 (citing Castro v. Cty. of L.A., 833 F.3d 7 1060, 1070 (9th Cir. 2016)). Under this test, “the plaintiff must ‘prove more than 8 negligence but less than subjective intent - something akin to reckless disregard.’” Id. To 9 sustain such a claim, Plaintiff must allege facts sufficient to show: 10 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 11 at substantial risk of suffering serious harm; (iii) the defendant did not take 12 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 13 involved—making the consequences of the defendant’s conduct obvious; and 14 (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 15 Id. 16 Although Plaintiff claims that he had a low-grade fever and was told to drink some 17 water and sleep it off, these facts alone are sufficient to plausibly suggest he faced any 18 “substantial risk of serious harm,” that “a reasonable officer in the circumstances would 19 have appreciated the high degree of risk involved,” or that Deputy Doe’s failure to abate 20 any “substantial risk” caused him any injury whatsoever. Castro, 833 F.3d at 1071. 21 For all these reasons, the Court finds Plaintiff’s Complaint fails to state a claim upon 22 which § 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez, 203 F.3d at 23 1126-27. 24 III. Conclusion and Order 25 Based on the foregoing, the Court: 26 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 27 (ECF No. 2). 28 2. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 1 |/upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)ai); and 2 3. GRANTS Plaintiff 45 days leave from the date of this Order in which to file 3 |}an Amended Complaint which cures the deficiencies of pleading noted. Plaintiffs 4 || Amended Complaint must be complete by itself without reference to his original pleading. 5 ||Defendants not named and any claim not re-alleged in his Amended Complaint will be 6 || considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 7 || 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); 8 || Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 9 || with leave to amend which are not re-alleged in an amended pleading may be “considered 10 || waived if not repled.”). 11 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter 12 ||a final Order dismissing this civil action based both on his failure to state a claim upon 13 || which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1) and his failure to 14 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 15 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 16 ||to fix his complaint, a district court may convert the dismissal of the complaint into 17 || dismissal of the entire action.”). 18 IT IS SO ORDERED. 19 |) Dated: August 13, 2020 Nitta Z. A a 20 Hon, William Q. Hayes 71 United States District Court 22 23 24 25 26 27 28 9 oo