Andrews v. Hodges et al

Filing 3

ORDER (1) Denying 2 Motion to Proceed in Forma Pauperis and (2) Dismissing Civil Action for Failure to State a Claim Pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff is granted 45 days leave from the date this Order is"Filed" in wh ich to pay the $400 initial civil filing fee and file a First Amended Complaint. The Clerk of Court is directed to mail Plaintiff a court approved civil rights complaint form. Signed by Judge Michael M. Anello on 3/16/2018. (All non-registered users served via U.S. Mail Service)(Prisoner 1983 packet mailed)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:18-cv-00530-MMA-KSC

ERIC ANDREWS,,
CDCR #E-37497,

ORDER:

Plaintiff,
vs.

1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
[Doc. No. 2]

DR. J. HODGES; R.N. M. GARCIA;
DEPARTMENT OF CORRECTIONS,

AND

Defendants.

(2) DISMISSING CIVIL ACTION
FOR FAILURE TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915A(b)(1)

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Eric Andrews (“Plaintiff”), currently incarcerated at Pelican Bay State Prison

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(“PBSP”) located in Crescent City, California, and proceeding pro se, has filed a civil

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rights complaint pursuant to 42 U.S.C. § 1993 (Doc. No. 1). While Plaintiff was housed

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at PBSP at the time he filed this action, the named Defendants are prison officials at the
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Richard J. Donovan Correctional Facility (“RJD”). (See Compl. at 1-2.) Plaintiff has

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not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a

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Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No.

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2).

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I.

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Request to Proceed In Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed

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IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

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Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

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1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for ... the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly

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balance in the account for the past six months, whichever is greater, unless the prisoner

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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.

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custody of the prisoner then collects subsequent payments, assessed at 20% of the

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preceding month’s income, in any month in which his account exceeds $10, and forwards

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those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

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Bruce, 136 S. Ct. at 629.

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In support of his request to proceed IFP, Plaintiff has submitted a prison certificate

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authorized by a PBSP accounting official and a copy of his CDCR Inmate Statement

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Report. See ECF No. 2; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d

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at 1119. These documents show that Plaintiff carried an average monthly balance of

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$3665.58 and average monthly deposits of $49.46. See ECF No. 2 at 4-6.

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In this matter, Plaintiff has not shown the indigence required to proceed IFP. If the

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Court were to assess the initial partial filing fee, it would actually exceed the amount

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required to initial a civil action. Therefore, because Plaintiff has shown that he is able to

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pay the filing fee in total, Plaintiff’s Motion to Proceed IFP is DENIED.

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II.

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Screening of Complaint pursuant to § 1915A
While Plaintiff has been denied leave to commence this civil action without

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prepayment of the $400 civil filing fee required by 28 U.S.C. § 1914(a), and his case

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requires dismissal for that reason alone, the Court also elects to conduct a sua sponte

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review of Plaintiff’s pleading because he was “incarcerated or detained in any facility

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[and] is accused of, sentenced for, or adjudicated delinquent for, violations of criminal

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law or the terms or conditions of parole, probation, pretrial release, or diversionary

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program” at the time he filed this action. See 28 U.S.C. § 1915A(a), (c).

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Section 1915A, also enacted as part of PLRA, requires sua sponte dismissal of

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prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to

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state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v.

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Tollefson, 135 S. Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir.

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2000). “The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious

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suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

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n.1 (9th Cir. 2014) (citations omitted.)
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A.

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On June 24, 2017, while housed at RJD, Plaintiff “suffered a left leg injury” while

Plaintiff’s allegations

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playing basketball. (See Compl. at 3.) Plaintiff “sought out medical attention at the

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Treatment Triage Area.” (Id.) He was examined by Defendants, Dr. Hodges and Nurse

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Garcia. (See id.) Plaintiff claims he told Hodges and Garcia that his leg was “totally

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numb” from his calf to his toe. (Id.) After examining Plaintiff, Hodges “ordered an x-

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ray” of Plaintiff’s ankle which “revealed no bone damage.” (Id.) Hodges diagnosed

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Plaintiff with an “ankle sprain,” provide him with crutches and prescribed pain

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medication. (Id.)

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Plaintiff claims over the next “four to five weeks” he experienced greater pain and

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increased his pain medication. (Id. at 4.) In September of 2017, Plaintiff was transferred

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to PBSP where he was diagnosed with an “Achilles tendon injury.” (Id. at 5.) Plaintiff

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claims that if his injury was addressed in a “timely fashion via surgery” he would have

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healed “within approximately six months.” (Id. at 6.)

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B.

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Prison officials violate the Eighth Amendment only when they respond with

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deliberate indifference to an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S.

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97, 103-05 (1976) (citations and footnotes omitted).

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Eighth Amendment -- Medical Care

Medical needs are sufficiently “serious” if, objectively, the failure to treat them

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“will result in significant injury or the unnecessary and wanton infliction of pain.”

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Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc) (citations and internal

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quotation marks omitted). Serious medical needs include “[t]he existence of an injury that

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a reasonable doctor or patient would find important and worthy of comment or treatment;

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the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain.” McGuckin v. Smith, 974 F.2d

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1050, 1059 (9th Cir. 1991) (citations omitted), overruled on other grounds by WMX

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Technologies, Inc., v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

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A prison official acts with deliberate indifference when the official is subjectively

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aware of, but purposefully ignores or fails to respond to an “excessive risk to inmate

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health” (i.e., a serious medical need). Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.

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2014) (citations omitted). Each Defendant’s alleged indifference must be “substantial.”

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Estelle, 429 U.S. at 105-06; Lemire v. Cal. Dept. of Corr. and Rehab. 726 F.3d 1062,

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1081-82 (9th Cir. 2013) (citations omitted).

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While a prisoner need not prove that he was completely denied medical care,

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Lopez, 203 F.3d at 1132, and deliberate indifference is manifest when a prison doctor or

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guard intentionally denies or delays access to medical care or intentionally interferes with

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“treatment once prescribed,” Estelle, 429 U.S. at 104-05 (footnotes omitted), a mere

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disagreement with a defendant’s professional judgment concerning what medical care is

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most appropriate under the circumstances is insufficient. Hamby v. Hammond, 821 F.3d

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1085, 1092 (9th Cir. 2016) (citation omitted). Therefore, the medical care a doctor

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provides to an inmate amounts to deliberate indifference only if the doctor is alleged to

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have chosen a course of treatment that “was medically unacceptable under the

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circumstances” and did so “in conscious disregard of an excessive risk to plaintiff’s

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health.” Colwell, 763 F.3d at 1068 (citations and internal quotation marks omitted).

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Finally, where a prisoner seeks to hold prison officials personally liable for

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damages, the plaintiff must establish a causal link between the particular defendant’s

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deliberate indifference and the constitutional deprivation alleged. Leer, 844 F.2d at 633-

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34. “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks v.

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United States, 197 F.3d 1245, 1248 (9th Cir. 1999). Proper evaluation of causation

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involves “a very individualized approach which accounts for the duties, discretion, and

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means of each defendant.” Leer, 844 F.2d at 633-34.

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Applying these standards, the Court finds Plaintiff’s Complaint fails to state a

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plausible claim for relief under the Eighth Amendment against the named Defendants.

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Iqbal, 556 U.S. at 678-79. Plaintiff claims that he suffered a serious injury but he also

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acknowledges that he was examined by the Defendants, an x-ray was taken, he received a
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diagnosis and provided pain medication. Plaintiff claims that they should have properly

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diagnosed his condition.

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However, a prison doctor’s mistake, negligence, or malpractice does not establish

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deliberate indifference to serious medical needs. Estelle, 429 U.S. at 105-06. “Even gross

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negligence is insufficient.” Lemire, 726 F.3d at 1082. Instead, “the official must both be

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aware of facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Colwell, 763 F.3d at 1066 (quoting

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Farmer v. Brennan, 511 U.S. 825, 837 (1994)) (quotation marks omitted).

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Moreover, a difference of opinion over what constitutes proper treatment does not

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rise to the level of an Eighth Amendment violation. See Estelle, 429 U.S. at 105-06;

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989); Shapley v. Nev. Bd. of State Prison

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Comm’r, 766 F.2d 404, 407 (9th Cir. 1984). “Deliberate indifference is a high legal

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standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (citing Hallett v.

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Morgan, 296 F.3d 732, 1204 (9th Cir. 2002). The Constitution does not require that

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prison doctors give inmates every medical treatment they desire. Bowring v. Godwin, 551

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F.2d 44, 47-48 (4th Cir. 1977).

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Here, Plaintiff’s claim sounds in negligence which does not rise to the level of an

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Eighth Amendment violation. Plaintiff acknowledges that he was examined and treated

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for his injury. For the reasons set forth above, the Court finds that Plaintiff has failed to

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state an Eighth Amendment claim upon which relief can be granted.

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III.

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Conclusion and Order
For the reasons set forth above, the Court:

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1)

DENIES Plaintiff’s Motion to Proceed IFP (Doc. No. 2);

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2)

DISMISSES this action without prejudice for failure to pay the full statutory

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and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a), and for failing to

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state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C.

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§ 1915A(b)(1);

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3)

Plaintiff is granted forty five (45) days leave from the date this Order is

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“Filed” in which to pay the $400 initial civil filing fee and file a First Amended

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Complaint which cures all the deficiencies of pleading noted above. Plaintiff’s Amended

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Complaint must be complete in itself without reference to the superseded pleading. See

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S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re-alleged in the

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Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim

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upon which relief may be granted, it may be dismissed without further leave to amend

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and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v.

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Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).

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4)

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complaint form.

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The Clerk of Court is directed to mail Plaintiff a court approved civil rights

IT IS SO ORDERED.
DATE: March 16, 2018

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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