Rapinoe v. Gore

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 BRIAN JAMES RAPINOE, Case No.: 21-CV-1779 TWR (WVG) Booking #20944774 [12] ORDER (1) GRANTING MOTION 13 TO PROCEED IN FORMA Plaintiff, PAUPERIS, (2) DISMISSING [14] vs. ACTION FOR FAILING TO STATE 15 A CLAIM UNDER 28 U.S.C. §§ 1915 (e)(2)(B) AND 1915A(b), AND [16] BILL GORE, Sheriff, DR. (3) DENYING WITHOUT 17 MONTGOMERY, VISTA DETENTION PREJUDICE MOTION FOR FACILITY DOCTORS, GEORGE APPOINTMENT OF COUNSEL [18] BAILEY DETENTION FACILITY 19 DOCTORS (ECF Nos. 2, 3) 20 Defendants. [22] 23 Plaintiff Brian James Rapinoe, an inmate currently detained at George Bailey 24 Detention Facility (“GBDF”), located in San Diego, California, and proceeding pro se, has 25 filed a civil rights complaint pursuant to 42 U.S.C. § 1983 . (See generally ECF No. 1 26 (“Compl.”).) He has also filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant 27 to 28 U.S.C. § 1915 (a) (“IFP Mot.,” ECF No. 2) and a Motion for Appointment of Counsel 28 (“Motion for Counsel,” ECF No. 3). 1 MOTION TO PROCEED IN FORMA PAUPERIS 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 $402.1 See 28 U.S.C. § 1914 (a). 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Prison Litigation Reform Act’s (“PLRA”) 8 amendments to § 1915, however, require that all prisoners who proceed IFP to pay the 9 entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82 , 83–84 (2016); 10 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether their 11 action is ultimately dismissed. See 28 U.S.C. §§ 1915 (b)(1), (2); Taylor v. Delatoore, 281 12 F.3d 844, 847 (9th Cir. 2002). 13 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment 14 of fees to file an affidavit that includes a statement of all assets possessed and demonstrates 15 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In 16 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of 17 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 18 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915 (a)(2); Andrews v. 19 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 20 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 21 for the past six months, or (b) the average monthly balance in the account for the past six 22 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. 23 §§ 1915(b)(1), (4). The institution having custody of the prisoner then collects subsequent 24 payments, assessed at 20% of the preceding month’s income, in any month in which his [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $52. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to [28] 1 account exceeds $10, and forwards those payments to the Court until the entire filing fee 2 is paid. See 28 U.S.C. § 1915 (b)(2); Bruce, 577 U.S. at 84. 3 In support of his IFP Motion, Rapinoe has submitted a copy of his Inmate Trust 4 Account Statement as well as a Prison Certificate completed by an accounting officer at 5 GPDF. (See IFP Mot. at 5–7; see also 28 U.S.C. § 1915 (a)(2); S.D. Cal. CivLR 3.2; 6 Andrews, 398 F.3d at 1119 .) These statements show Plaintiff maintained an average 7 monthly balance of $0.47 and had $41.99 in average monthly deposits credited to his 8 account over the 6-month period immediately preceding the filing of his Complaint. His 9 available balance as of October 12, 2021, was $0.00. (See IFP Mot. at 5.) Therefore, the 10 Court GRANTS Plaintiff’s IFP Motion (ECF No. 2); declines to exact any initial filing fee 11 because his prison certificates indicate he may have “no means to pay it,” Bruce, 577 U.S. 12 at 84; and directs the Watch Commander at George Bailey Detention Facility, or his 13 designee, to instead collect the entire $350 balance of the filing fees required by 28 U.S.C. 14 § 1914 and forward them to the Clerk of the Court pursuant to the installment payment 15 provisions set forth in 28 U.S.C. § 1915 (b)(1). 16 INITIAL SCREENING PER 28 U.S.C. §§ 1915 (e)(2)(B) AND 1915A(b) 17 Because Rapinoe is a detainee and is proceeding IFP, his Complaint requires a pre18 answer screening pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). 19 I. Legal Standard 20 Under 28 U.S.C. §§ 1915 (e)(2) and 1915A(b), the Court must sua sponte dismiss a 21 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 22 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 23 1122 , 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. 24 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 25 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 26 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 27 2014) (citation omitted). 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 F.3d 4 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 5 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 “contain sufficient factual matter, accepted 8 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 10 In deciding whether to dismiss the complaint for failing to state a claim, the court is 11 generally bound by the facts and allegations contained within the four corners of the 12 complaint. Hydrick v. Hunter, 500 F.3d 978, 985 (9th Cir. 2007). But, if the plaintiff has 13 supplemented the complaint by attaching documents, the court may consider these 14 documents as part of the complaint when determining whether the plaintiff can prove the 15 allegations asserted in the complaint. During v. First Boston Corp., 815 F.2d 1265 , 1267 16 (9th Cir. 1987). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 20 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 22 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 23 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 24 Finally, while a plaintiff’s factual allegations are taken as true, courts “are not 25 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677 , 26 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts 27 “have an obligation where the petitioner is pro se, particularly in civil rights cases, to 28 construe the pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe 1 v. Pliler, 627 F.3d 338 , 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026 , 2 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not 3 initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 4 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in 5 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id. 6 II Plaintiff’s Allegations 7 In his Complaint, Rapinoe alleges “medical staff at George Bailey Detention 8 Facility, San Diego Central Jail and Vista Detention Facility have engaged in a systematic 9 denial of medical care.” (See Compl. at 3.) Rapinoe contends that in 2017, while he was 10 a detainee in the custody of the San Diego County Sheriff’s Department (“SDSD”), 11 Defendant Sheriff Bill Gore “enacted policies and procedures concerning how and what a 12 doctor contracted by the County, working as a primary care physical for the facilities 13 Sheriff Gore oversees, may treat.” (See id.) Rapinoe alleges Defendant Montgomery, as 14 the Chief Medical Officer, was tasked with “ensur[ing] the polices were put into practice 15 . . . in 2017.” (See id.) Rapinoe asserts that under the policies enacted in 2017, “all 16 treatment for any illness that [is] not literally life or death were and still are treated as 17 elective in nature.” (See id.) 18 Rapinoe contends that due to these policies, medical staff for the SDSD were 19 deliberately indifferent to his serious medical needs related to a knee injury which required 20 surgery. Specifically, Rapinoe alleges that in early 2017, while out of custody, he suffered 21 a “sudden knee dislocation.” (See id. at 4.) Rapinoe was being treated for an “inflamed 22 and deteriorating ACL and meniscal tear” at a San Diego clinic prior to entering San Diego 23 jail. (See id.) He had been prescribed a variety of pain medications, including Percocet 24 and Gabapentin2 and was “scheduled for surgery;” but he was returned to SDSD custody [26] 2 The Court takes judicial notice of the fact that Gabapentin is used for “Neuropathic Pain and 27 Peripheral Neuropathy,” among other things. See Physician’s Desk Reference, https://www.pdr. net/drug-summary/Neurontin-gabapentin-2477.4218 (visited Nov. 29, 2021). Percocet is a [28] 1 on February 22, 2017, before the surgery could take place. (See id.) Rapinoe alleges that 2 after entering SDSD custody, he was “denied treatment at every level.” (See id. at 5.) Prior 3 to the 2017 policy changes, Rapinoe states that he had received Norco3 and Gabapentin 4 when in SDSD custody, which helped with his knee pain but he is now being denied pain 5 medication under the “new” SDSD policy. (See id.) 6 Rapinoe alleges SDSD medical staff failed to treat his knee while he was in their 7 custody in 2017, and as a result, when he was ultimately transferred to California 8 Department of Corrections and Rehabilitation (“CDCR”) custody, he “reinjured his knee.” 9 (See id.) He claims the reinjury was due to the lack of treatment he received while SDSD 10 custody. (See id.) While in CDCR custody, Rapinoe’s knee was evaluated and he was 11 scheduled for surgery by doctors at Pelican Bay State Prison. (See id.) But Rapinoe was 12 paroled in August 2019, before the surgery could take place. (See id. at 6.) While out of 13 custody, he was seen by a doctor at a medical clinic who told him that without surgery he 14 would continue to be in “major pain and further damage [his] knee that was already 15 damaged.” (See id.) He was returned to SDSD custody in 2020 and alleges that he had a 16 “single (tele-med) ortho appointment,” after which he was denied any treatment for his 17 injury, including surgery, pain medication, a cortisone shot, soft soled shoes, and/or 18 physical therapy. (See id. at 7.) 19 Plaintiff also alleges that under the policies enacted by Gore, he has been denied 20 treatment for his opioid addiction which amounts to a violation of his right to adequate [22] oxycodone. See id. at https://www.pdr.net/drug-summary/Percocet-acetaminophen-oxycodone23 2483.1051; see also United States v. Howard, 381 F.3d 873 , 880 & n.7 (9th Cir. 2004) (taking 24 judicial notice of the narcotic effects of certain medications listed in the Physician’s Desk Reference); see also Lolli v. Cty. of Orange, 351 F.3d 410 , 419 (9th Cir. 2003) (“Well-known [25] medical facts are the types of matters of which judicial notice may be taken.”). [26] 3 The Court takes judicial notice that “Norco” is a “combination product to treat moderate to 27 severe pain,” containing acetaminophen and hydrocodone, “a semisynthetic opiate.” See Physician’s Desk Reference, https://www.pdr.net/drug-summary/Norco-acetaminophen28 1 medical care. (See id. at 9–10.) Rapinoe asserts that he has repeatedly requested Medically 2 Assisted Treatment (“MAT”) for his “dual diagnosis [of] addiction [and] mental health 3 problems.” (See id. at 10.) In addition to being denied treatment, the SDSD offers “no 4 other alternatives” to inmates with drug addiction. (See id.) Rapinoe further contends his 5 addiction and mental health issues amount to a disability and depriving him admission to 6 a MAT program amounts to denial of a serious medical need “with no rational basis.” (See 7 id.) He claims other detainees at in SDSD custody are provided MAT services but “the 8 process by which inclusion is granted is unknown.” (See id. at 9.) 9 Last, Rapinoe alleges that while detained at Vista Detention Facility (“VDF”), he 10 received inadequate dental care after he lost a tooth filling in early 2020. (See id. at 13.) 11 On February 19, 2020, Rapinoe submitted a grievance complaining that he had waited over 12 two weeks to see a dentist and he “had not heard from dental. . . or the charge nurse.” (See 13 id.) He was finally seen by a dentist in mid-March 2020, “around 3 weeks” after he filed 14 his grievance. (See id.) X-rays showed that his filling had fallen out and that “a simple 15 procedure requiring a [new filling] should fix said tooth in no time.” (See id.) He waited 16 to be scheduled for an appointment to re-fill the tooth. (See id.) In June 2020, when he 17 had still not been treated, Rapinoe filed another grievance about the delay. (See id.) By 18 that time, Rapinoe alleges, the tooth “pain got bad” and he was having trouble eating and 19 sleeping. (See id.) Plaintiff finally received treatment on September 1, 2020, when a 20 dentist filled the tooth. (See id.) But by that time, a “cavity had set in” and the dentist told 21 Rapinoe he was not sure if it would “become infected.” (See id. at 12.) Plaintiff states that 22 two weeks after getting the filling he was “back in excruciating pain.” (See id.) He was 23 told by the dentist that his tooth was infected and “will have to come out [because] we 24 don’t do root canals.”4 (See id.) Plaintiff contends that the failure to “extract, fill or 25 perform dental work on [his] infected tooth for over 7 months amounted to deliberate [28] 1 indifference” to his serious medical needs and was based on policies put in place by Gore 2 and executed by Montgomery. (See id. at 13.) 3 III. Analysis 4 Section 1983 of chapter 42 of the United States Code is a “vehicle by which plaintiffs 5 can bring federal constitutional and statutory challenges to actions by state and local 6 officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a claim 7 under section 1983, Rapinoe must allege two essential elements: (1) that a right secured by 8 the Constitution or laws of the United States was violated, and (2) that the alleged violation 9 was committed by a person acting under the color of state law. See West v. Atkins, 487 10 U.S. 42 , 48 (1988); Naffe v. Frey, 789 F.3d 1030 , 1035‒36 (9th Cir. 2015). 11 Rapinoe raises three claims: (1) he received inadequate medical and dental care 12 because of policies put in place by officials of the SDSD, in violation of his due process 13 rights; (2) the failure to admit him to the Medication-Assisted Treatment (“MAT”) program 14 for treatment of his opioid addiction is a violation of his Equal Protection rights; and (3) his 15 rights under the Rehabilitation Act. (See generally, Compl.) 16 A. Failure to Provide Adequate Medical Care and Monell 17 In his Complaint, Rapinoe names as defendants, San Diego Sheriff Bill Gore,5 Bill 18 Montgomery, Chief Medical Officer, and “All Doctors” at George Bailey Detention 19 Facility (“GBDF”) and Vista Detention Facility (“VDF”). (See Compl. at 2.) Rapinoe 20 claims he received inadequate medical care while housed in the custody of the SDSD as a 21 pre-trial detainee, in violation of his “right to medical care, due process and freedom from 22 cruel and unusual punishment.” (See id. at 3–5.) He further contends Defendants put in 23 place and executed policies at the San Diego County jails that deprived him of adequate 24 medical care. (See id. at 3.) Specifically, Rapinoe alleges Defendants were deliberately [26] 27 5 Gore retired as San Diego Sheriff on February 3, 2022. See Press Release, Sheriff Bill Gore Announces Retirement, https://www.sdsheriff.gov/Home/Components/News/News/901/ 514? [28] 1 indifferent to his serious medical needs when they deprived him of medical care for a knee 2 injury, denied him participation in a MAT program for detainees with a history of opioid 3 drug addiction, and denied him adequate dental care. (See id. at 3, 8, 12.) 4 Rapinoe indicates on his form Complaint that he seeks to sue each party in the 5 “official capacity,” (see id. at 2); however, he seeks both monetary damages and injunctive 6 relief. (See id. at 2, 15.) As such, the Court will address both individual and official 7 liabilities. See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“[W]hen a 8 plaintiff sues a defendant for damages, there is a presumption that he is seeking damages 9 against the defendant in his personal capacity.”); Romano v. Bible, 169 F.3d 1182 , 1186 10 (9th Cir. 1999). 11 1. Individual Capacity – Respondeat Superior 12 To the extent Plaintiff seeks to sue Defendants Gore and Montgomery in their 13 individual capacities, he fails to state a claim. There is no vicarious liability under § 1983. 14 In other words, an individual defendant is not one is responsible for the actions or 15 omissions of another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno 16 Thunderbird Mobile Home Village, 723 F.2d 675 , 680–81 (9th Cir. 1984). “Because 17 vicarious liability is inapplicable to . . . § 1983 suits,” Rapinoe “must plead that each 18 Government-official defendant, through the official’s own individual actions, has violated 19 the Constitution.” Iqbal, 556 U.S. at 676 . 20 Here, Rapinoe includes no specific factual allegations describing any individual acts 21 or omissions taken by Gore and/or Montgomery related to the treatment, or lack thereof, 22 of Rapinoe’s knee injury in 2017 or 2020, his dental care, or the denial of admission to the 23 MAT program. Plaintiff’s broad and generalized allegations fail to show how, or to what 24 extent, the Sheriff or Chief Medical Officer may be held individually liable for any 25 constitutional injury. See id. at 676–77; Jones v. Cmty. Redev. Agency of City of L.A., 733 26 F.2d 646, 649 (9th Cir. 1984) (stating that even a pro se plaintiff must “allege with at least 27 some degree of particularity overt acts which defendants engaged in” to state a claim). 28 / / / 1 Therefore, Rapinoe fails to state a claim against Gore and/or Montgomery in their 2 individual capacities. See Taylor, 880 F.2d at 1045 . 3 2. Official Capacity – Monell 4 With respect to claims against Gore and Montgomery in their official capacities, the 5 Supreme Court has held that an “official-capacity suit is, in all respects other than name, 6 to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). 7 “Official capacity suits [under § 1983] . . . ‘generally represent only another way of 8 pleading an action against an entity of which an officer is an agent.’” Id. at 165–66 (quoting 9 Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658 , 690 & n.55 (1978)); see also 10 Brandon v. Holt, 469 U.S. 464, 472 (1985) (concluding actions of department head in his 11 official capacity are akin to actions of municipality itself). Thus, to the extent Rapinoe is 12 attempting to sue Gore and Montgomery their official capacities as Sheriff and Chief 13 Medical Officer, it is treated as a suit against the County of San Diego. See Kentucky, 473 14 U.S. at 166. 15 A local municipality can be held liable under § 1983 if the allegedly unconstitutional 16 actions of its employees are alleged to have been taken pursuant to a “policy statement, 17 ordinance, regulation, or decision officially adopted and promulgated by that body’s 18 officers.” See Monell, 436 U.S. at 690 . To state a municipal liability claim under § 1983, 19 Rapinoe must allege both a deprivation of a constitutional right and a departmental policy, 20 custom, or practice that was the “moving force” behind the constitutional violation. See 21 Graham, 473 U.S. at 166 ; see also Hafer v. Melo, 502 U.S. 21, 25 (1991); Villegas v. Gilroy 22 Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (en banc). Specifically, Plaintiff 23 must allege “(1) that [he] possessed a constitutional right of which he was deprived; (2) that 24 the [County] had a policy; (3) that the policy amounts to deliberate indifference to 25 [Plaintiff’s] constitutional right; and (4) that the policy is the ‘moving force behind the 26 constitutional violation.’” See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 27 2011). 28 / / / 1 A plaintiff can show the existence of an entity’s policy in one of three ways. See 2 Thomas v. Cty. of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014). First, an entity may be 3 held liable when it acts “pursuant to an expressly adopted policy.” See id. (citing Monell, [4] 436 U.S. at 694 ). Second, an entity may be held liable for a “longstanding practice or 5 custom.” See id. Such circumstances may arise when, for instance, the entity “fail[s] to 6 implement procedural safeguards to prevent constitutional violations” or when it fails to 7 adequately train its employees. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th 8 Cir. 2012) (citing Oviatt v. Pearce, 954 F.2d 1470 , 1477 (9th Cir. 1992)). Third, an entity 9 may be held liable when “an official with final policy-making authority ratified a 10 subordinate’s unconstitutional decision or action and the basis for it.” See Gillette v. 11 Delmore, 979 F.2d 1342 , 1346–47 (9th Cir. 1992). 12 There must be a “direct causal link between a municipal policy or custom and the 13 alleged constitutional deprivation.” See Collins v. Cty. of Harker Heights, 503 U.S. 115 , 14 123 (1992). “[P]roof of a single incident of unconstitutional activity,” or even a series of 15 “isolated or sporadic incidents,” will not give rise to liability under § 1983. See Gant v. 16 Cty. of L.A., 772 F.3d 608, 618 (9th Cir. 2014) (citation omitted). Rather, liability must be 17 “founded upon practices of sufficient duration, frequency and consistency that the conduct 18 has become a traditional method of carrying out policy.” See Trevino v. Gates, 99 F.3d 19 911, 918 (9th Cir. 1996). As such, Rapinoe must allege facts to show that a constitutional 20 deprivation6 was caused by the implementation or execution of “a policy statement, [22] 6 Rapinoe alleges his constitutional right to due process was violated when he received inadequate [23] medical and dental care as a pretrial detainee. (See generally Compl.) A plaintiff demonstrates 24 “deliberate indifference” under the Due Process Clause by showing a purposeful act or failure to respond to a prisoner’s pain or possible medical need and harm caused by the indifference. See 25 Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). The defendant’s conduct “must 26 be objectively unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each particular case.’” See id. (quoting Castro v. Cty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) 27 (en banc)). A defendant’s “mere lack of due care” is insufficient to state a Fourteenth Amendment claim. See Gordon v, 888 F.3d at 1125 . Thus, a plaintiff must “prove more than negligence but [28] 1 ordinance, regulation, or decision officially adopted and promulgated” by the municipality, 2 or a “final decision maker” for the municipality. See Monell, 436 U.S. at 690 ; see also 3 Connick v. Thompson, 563 U.S. 51 , 60 (2011) (explaining that to impose liability on a local 4 government under § 1983 the plaintiffs must prove that an “action pursuant to official 5 municipal policy” caused their injury); Garmon v. Cty. of L.A., 828 F.3d 837, 845 (9th Cir. 6 2016). 7 Here, Rapinoe alleges Sheriff Gore is responsible for policy changes made in 2017, 8 which led to Rapinoe purportedly receiving inadequate medical care for his knee while in 9 SDSD custody in 2017 and 2020; inadequate dental care in 2020; and no necessary drug 10 treatment in 2020. (See Compl. at 5, 9, 12.) He further contends that, as Chief Medical 11 Officer, Montgomery was responsible for implementing these policies. (See id. at 5.) 12 Rapinoe alleges Gore “enacted policies and procedures” in 2017, concerning “how and 13 what” a doctor who contracts with the SDSD may treat detainees. (See id. at 3.) Rapinoe 14 states that under the policy purportedly enacted by Gore and implemented by Montgomery, 15 “all treatment for any illness that was not literally life or death were and still are treated as 16 elective in nature.” (See id.) He contends that as a result of this “policy” he was denied 17 adequate medical and dental care. (See id.) 18 Rapinoe must do more than allege Defendants “maintained or permitted an official 19 policy, custom or practice of knowingly permitting the occurrence of the type of wrongs,” 20 such as inadequate medical care, alleged elsewhere in his Complaint. See AE ex rel. 21 Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). Facts regarding the specific 22 nature of the alleged policy, custom, or practice are required; merely stating the subject to 23 which the policy relates (i.e., inadequate medical care) is insufficient. See id. For an 24 unwritten policy or custom to form the basis of a Monell claim, it must be so “persistent 25 and widespread” that it constitutes a “permanent and well settled” practice. See Monell, [26] 436 U.S. at 691 . In pleading such a claim, the complaint must “put forth additional facts 27 regarding the specific nature of [the] alleged policy, custom, or practice.” See AE, 666 28 F.3d at 637. Here, Rapinoe alleges merely that “all treatment for any illness that [is] not 1 literally life or death were and . . . are treated as elective in nature.” (See Compl. at 3.) 2 Plaintiff’s vague allegations fall short of pleading a viable Monell. See Iqbal, 556 U.S. at 3 678; AE, 666 F.3d at 636–37 (applying Iqbal pleading standards to Monell claims). 4 Furthermore, Rapinoe has not adequately alleged specific facts demonstrating that 5 his alleged constitutional deprivation was the result of a custom or practice of the County 6 of San Diego. See Dougherty, 654 F.3d at 900–01. To plead a sufficient Monell claim, a 7 plaintiff must show that the government “had a deliberate policy, custom, or practice that 8 was the ‘moving force’ behind the constitutional violation he suffered.” See Galen v. Cty. 9 of L.A., 477 F.3d 652 , 667 (9th Cir. 2007) (quoting Monell, 436 U.S. at 694–95); see also 10 Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (“[A] plaintiff . . . must 11 demonstrate a direct causal link between the municipal action and the deprivation of federal 12 rights.”); Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013) (“To meet this 13 requirement, the plaintiff must show both causation-in-fact and proximate causation.”). 14 “This inquiry has been described as a difficult one.” See Koistra v. Cty. of San Diego, 310 15 F. Supp. 3d 1066, 1086 (S.D. Cal. 2018) (citing City of Canton, 489 U.S. at 385–86). 16 Here, Rapinoe has failed to allege sufficient facts to allege “a ‘direct causal link’ 17 between a policy or custom and the alleged constitutional violation.” See Anakin v. Contra 18 Costa Reg’l Med. Ctr., No. 16-cv-00161-MEJ, 2016 WL 1059428 , at *3 (N.D. Cal. 19 Mar. 17 , 2016) (“Plaintiff has not identified or alleged a policy, practice or custom that 20 may have caused a deprivation of his rights, and he fails to allege that such practice was 21 the ‘moving force’ behind his alleged injury.” (quoting Bd. of Cty. Comm’rs, 520 U.S. at 22 404)); see also Dougherty, 654 F.3d at 900–01 (“The Complaint lacked any factual 23 allegations regarding key elements of the Monell claims, or, more specifically, any facts 24 demonstrating that his constitutional deprivation was the result of a custom or practice of 25 the City of Covina or that the custom or practice was the ‘moving force’ behind his 26 constitutional deprivation.”) Therefore, Plaintiff has failed sufficiently to allege causation 27 as required for a Monell claim. 28 / / / 1 Based on the foregoing, the Court finds Plaintiff has failed to state a Monell claim 2 against Gore and/or Montgomery in their official capacities. 3 3. Doctors at VDF and GBDF 4 Rapinoe contends that his Due Process and Eighth Amendment rights were violated 5 by “Doctors at Vista Detention Facility” and “Doctors at George Bailey Detention 6 Facility.” (See Compl. at 2.) It appears Rapinoe is attempting to allege that unnamed 7 doctors at GBDF and VDF failed to provide adequate medical care and dental care. (See 8 generally id. at 3–8.) 9 To the extent Plaintiff seeks damages against these unnamed defendants in their 10 official capacities, the claims must be dismissed. As discussed above, a suit against a state 11 official in his or her official capacity is not a suit against the official but rather is a suit 12 against the official’s office.” See Will v. Mich. Dep’t of State Police, 491 U.S. 58 , 71 13 (1989). Accordingly, defendants are entitled to immunity from suit for monetary damages 14 in his or her official capacity under the Eleventh Amendment. See Seminole Tribe v. 15 Florida, 517 U.S. 44, 53–54 (1996). 16 To the extent Plaintiff seeks to sue the unnamed doctors at GBDF and VDF in their 17 individual capacities for deliberate indifference to his serious medical needs, he also fails 18 to state a claim. Generally, actions against “unknown” defendants are disfavored. 19 Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). A plaintiff may, however, 20 sue unnamed defendants when the identity of the alleged defendants is not known prior to 21 the filing of the complaint. See Gillespie v. Civiletti, 629 F.2d 637 , 642–43 (9th Cir. 1980). 22 When suing unnamed defendants, the plaintiff must still allege that each one had personal 23 involvement in the civil rights violations or that their action or inaction caused the harm 24 suffered. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Montoya ex rel. S.M. v. 25 Española Pub. Sch. Dist. Bd. of Educ., No. 10-cv-0651, 2012 WL 13070109 , at *3 (D.N.M. 26 Dec. 6, 2012) (“[L]iability must be premised on these individuals’ own conduct which 27 allegedly violates Plaintiff’s federal constitutional rights.”). 28 / / / 1 Here, Plaintiff names “Doctors at GBDF” and “Doctors at VDF,” but he fails to 2 describe with particularity how any individual doctors participated in the alleged 3 constitutional violations. Plaintiff’s allegations are therefore insufficient to establish any 4 liability against individual doctors at either facility. 7 For these reasons, Plaintiff has failed 5 to state a claim against the “Doctors of GBDF” and “Doctors of VDF.” 6 B. Equal Protection Claim 7 In addition to alleging a violation of his due process rights, Rapinoe argues the SDSD 8 denied him admission to the MAT program for treatment of his drug addiction while other 9 similarly situated detainees were admitted, with “no rational basis.” (See Compl. at 9–11.) 10 The Court liberally construes this allegation as an equal protection claim. See Balistreri v. 11 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (stating pro se pleadings must be 12 liberally construed). 13 The Equal Protection Clause requires that persons who are similarly situated be 14 treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); 15 Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be 16 established by showing that defendants intentionally discriminated against a plaintiff based 17 on his membership in a protected class, see Comm. Concerning Cmty. Improvement v. City 18 of Modesto, 583 F.3d 690 , 702–03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071 ,1082 19 (9th Cir. 2003), or that similarly situated individuals were intentionally treated differently 20 without a rational relationship to a legitimate state purpose. See Engquist v. Ore. Dep’t of 21 Agr., 553 U.S. 591 , 601–02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562 , 564 22 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). 23 Rapinoe alleges he suffers from a disability related to his “dual diagnosis [of] 24 addiction [and] mental health problems” and “other inmates in the SDSD facilities with the [26] 7 When a plaintiff sues a “Doe” defendant, the court provides the plaintiff “the opportunity through 27 discovery to identify unknown defendants, unless it is clear that discovery would not uncover the identities.” See Gillespie, 629 F.2d at 642 . A plaintiff must diligently pursue discovery to learn [28] 1 same or similar problems are receiving [MAT] treatment,” while he is denied the treatment. 2 (See Compl. at 10.) He states that only a “select few” detainees are provided MAT 3 treatment and there is “no rational basis” to offer the program to these inmates and not 4 Rapinoe. (See id.) He further alleges that “every other major city in California has adopted 5 and implemented” programs similar to the MAT program and “there is no rational basis 6 [for San Diego County] to deny “those seeking treatment for drug addictions.” (See id. at 7 11.) He includes a declaration from a fellow detainee of the SDSD who states he has a 8 history as a “narcotic user with mental health issues” and he is “currently on the MAT 9 treatment program while housed in the custody of SDSD.” (See id. at 17.) 10 “[T]he disabled do not constitute a suspect class” for equal protection purposes. See 11 Does v. Chandler, 83 F.3d 1150 , 1155 (9th Cir. 1996) (citing City of Cleburne, 473 U.S. at 12 440). Plaintiff has not shown that he was discriminated against because of his membership 13 in any protected class. See Hartmann v. Calif. Dep’t of Corrs. & Rehab, 707 F.3d 1114 , 14 1123 (9th Cir. 2013). Nor has Plaintiff alleged sufficient facts to show he was intentionally 15 treated differently than other similarly situated inmates without a rational relationship to a 16 legitimate state purpose. See Engquist, 553 U.S. at 601–02. Simply providing a declaration 17 indicating another inmate in SDSD custody was admitted to the MAT program is 18 insufficient to allege they are “similarly situated” or that there is no rational basis one 19 inmate being accepted into the program and not Plaintiff. Rapinoe’s conclusory statements 20 that he was denied his requests for MAT drug treatment due to discrimination does not 21 suffice. See Iqbal, 556 U.S. at 678 . Therefore, he has failed to state an equal protection 22 claim. 23 C. Rehabilitation Act 24 Lastly, Rapinoe appears to argue that failure admit him to the MAT program while 25 in SDSD custody violates his rights under the Rehabilitation Act (“RA”). He states that, 26 “under the Rehabilitation Act, I am protected from discrimination based on disabilities to 27 with [sic] mental health and drug addiction.” (See Compl. at 9.) He contends that if SDSD 28 / / / 1 “cannot provide [MAT treatment within San Diego County Jails,] it will need to provide 2 access to outside treatment.” (See id.) 3 To state a claim under the Rehabilitation Act, a plaintiff must allege “(1) he is an 4 individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was 5 denied the benefits of the program solely by reason of his disability; and (4) the program 6 receives federal financial assistance.” See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056 , 7 1060 (9th Cir. 2007) (quoting Duvall v. Cty. of Kitsap, 260 F.3d 1124 , 1135 (9th Cir. 8 2001)). Here, Plaintiff alleges no facts to show that he was denied admission into the MAT 9 program because of his disability. See Duvall, 260 F.3d at 1135. Rapinoe’s conclusory 10 statements that he was denied admission to the MAT program is insufficient to support a 11 cause of action for a violation of the Rehabilitation Act. See Iqbal, 556 U.S. at 678 (holding 12 that the pleading standard “demands more than an unadorned, the-defendant-unlawfully13 harmed-me accusation”). Moreover, he fails to allege that MAT program receives federal 14 assistance. Plaintiff has therefore failed to state a claim under the RA. See Lovell v. 15 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). 16 D. Leave to Amend 17 Based on the foregoing, the Court finds Plaintiff’s Complaint fails to state any 18 § 1983 claim upon which relief can be granted, and that it must be dismissed sua sponte 19 and in its entirety pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). See 20 Wilhelm, 680 F.3d at 1121 ; Watison, 668 F.3d at 1112 . Because Rapinoe is proceeding pro 21 se, however, the Court, having now provided him with “notice of the deficiencies in his 22 complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698 F.3d 23 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 24 Consequently, in light of Plaintiff’s pro se status, the Court grants him leave to amend his 25 pleading to attempt sufficiently to allege § 1983 claims against Defendants. See Rosati v. 26 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 27 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii)] unless ‘it 28 / / / 1 is absolutely clear that the deficiencies of the complaint could not be cured by 2 amendment.’”) (quoting Akhtar, 698 F.3d at 1212). 3 MOTION FOR APPOINTMENT OF COUNSEL 4 Plaintiff has also filed a Motion for Appointment of Counsel. (See generally ECF 5 No. 3.) He states that, “due to current COVID-19 restrictions all aspects of custodial life 6 are effectively limited,” including access to the law library, research materials and legal 7 mail. (See id. at 2.) 8 There is no constitutional right to counsel in a civil case. See Lassiter v. Dept. of 9 Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 10 And while 28 U.S.C. § 1915 (e)(1) grants the district court limited discretion to “request” 11 that an attorney represent an indigent civil litigant, see Agyeman v. Corr. Corp. of Am., 390 12 F.3d 1101 , 1103 (9th Cir. 2004), this discretion may be exercised only under “exceptional 13 circumstances.” See id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 14 A finding of exceptional circumstances requires the Court “to consider whether there is a 15 ‘likelihood of success on the merits’ and whether ‘the prisoner is unable to articulate his 16 claims in light of the complexity of the legal issues involved.’” See Harrington v. Scribner, [17] 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970 ). That the pro se 18 litigant would be better served with the assistance of counsel, does not necessarily qualify 19 the issues involved as complex. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 20 1986) (stating it is not enough that plaintiff may well have fared better with assistance of 21 counsel). 22 As currently pleaded, Plaintiff’s Complaint fails to contain the legal complexity 23 required to support the appointment of pro bono counsel pursuant to 28 U.S.C. 24 § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 970 . First, while Plaintiff 25 may not be formally trained in law, his allegations, as liberally construed, see Erickson v. 26 Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully capable of legibly articulating 27 the facts and circumstances relevant to his claims which are not legally “complex.” See 28 / / / 1 Agyeman, 390 F.3d at 1103. Furthermore, at this early stage of the litigation, the likelihood 2 of plaintiff’s success on the merits is unclear. 3 While the Court is sympathetic to the difficulties Plaintiff is likely experiencing due 4 to the COVID-19 pandemic, minimal-to-no access to the law library does not establish 5 exceptional circumstances. Indeed, lacking legal expertise is the norm rather than an 6 “exceptional circumstance” in pro se civil rights cases. See, e.g., Wood v. Housewright, [7] 900 F.2d 1332 , 1335–36 (9th Cir. 1990) (denying appointment of counsel where plaintiff 8 complained that he had limited access to law library and lacked a legal education). 9 Moreover, courts in the Ninth Circuit have declined to find that challenges presented by 10 the COVID-19 pandemic alone establish exceptional circumstances. See, e.g., Pitts v. 11 Washington, No. 18-cv-0526-RSL-MLP, 2020 WL 2850564 , at *1 (W.D. Wash. June 2, 12 2020) (denying motion for appointment of counsel because, “[a]lthough Plaintiff contends 13 he is unable to access the law library because of social distancing, this bare assertion does 14 not justify the appointment of counsel at this time, nor does the COVID-19 pandemic”); 15 Faultry v. Saechao, No. 18-cv-1850-KJM-AC-P, 2020 WL 2561596 , at *2 (E.D. Cal. 16 May 19, 2020) (denying motion for appointment of counsel and explaining that 17 “[c]ircumstances common to most prisoners, such as lack of legal education and limited 18 law library access, do not establish exceptional circumstances supporting appointment of 19 counsel . . . . The impacts of the COVID-19 health crisis on prison operations are also 20 common to all prisoners”); see also Raya v. Barka, No. 3:19-cv-2295-WQH-AHG, 2020 21 WL 5877848 , at *3 (S.D. Cal., Oct. 2, 2020) (noting that “courts in this circuit have 22 declined to find that the COVID-19 pandemic establishes exceptional circumstances”); 23 Snowden v. Yule, No. 2:17-cv-2167-TLN-AC-P, 2020 WL 2539229 , at *1 (E.D. Cal., 24 May 19, 2020) (stating that “limited access to the prison law library and resources, 25 particularly during the current COVID-19 health crisis” is a circumstance that plaintiff 26 shares with many other prisoners). 27 / / / 28 / / / 1 Therefore, the Court finds no “exceptional circumstances” currently exist and 2 DENIES WITHOUT PREJUDICE Plaintiff’s Counsel Motion (ECF No. 3). See, e.g., 3 Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). 4 CONCLUSION 5 For the reasons explained above, the Court: 6 1. DENIES WITHOUT PREJUDICE Plaintiff’s Motion for Appointment of 7 Counsel (ECF No. 3); 8 2. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915 (a) 9 (ECF No. 2); 10 3. ORDERS the Watch Commander of George Bailey Detention Facility, or 11 their designee, to collect from Plaintiff’s inmate trust account the $350 filing fee owed in 12 this case by collecting monthly payments from the account in an amount equal to twenty 13 percent (20%) of the preceding month’s income and forward payments to the Clerk of the 14 Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. 15 § 1915(b)(2), with ALL PAYMENTS CLEARLY IDENTIFIED BY THE NAME AND 16 NUMBER ASSIGNED TO THIS ACTION; 17 4. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 18 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California 19 92158; 20 5. DISMISSES this civil action sua sponte based on Plaintiff’s failure to state a 21 claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 22 1915A(b)(1); and 23 6. GRANTS Plaintiff forty-five (45) days’ leave from the date of this Order in 24 which to file an Amended Complaint that cures the deficiencies of pleading noted above. 25 The Amended Complaint must be complete by itself without reference to his original 26 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 27 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios v. Richard 28 Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 1 || the original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting 2 claims dismissed with leave to amend which are not re-alleged in an amended pleading 3 ||may be “considered waived if not repled”’). 4 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 5 || will enter a final Order dismissing this civil action based both on Plaintiffs failure to state 6 |}a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 7 |{1915A(b) and his failure to prosecute in compliance with a court order requiring 8 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 9 || not take advantage of the opportunity to fix his complaint, a district court may convert the 10 || dismissal of the complaint into dismissal of the entire action.”). 1] IT IS SO ORDERED. 12 || Dated: March 8, 2022 —_—_ 13 | 99> (2 re 14 Honorable Todd W. Robinson 15 United States District Court