Battensby v. Zhang

DAVID BATTENSBY, CDCR # AC-8920, Plaintiff, v. RONALD ZHANG; M. SOUSLEY;S. ROBERTS, M.D.; S. GATES, Chief, Defendants.

Case No.: 3:20-cv-0001-BAS-MDD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 28, 2020

ORDER:

1) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) (ECF No. 2)

2) DISMISSING DEFENDANTS SOUSLEY, ROBERTS, AND GATES PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b)

Plaintiff David Battensby, incarcerated at the Richard J. Donovan Correctional Facility ("RJD") in San Diego, California filed a pro se civil rights Complaint pursuant to 42 U.S.C. Section 1983. ("Compl.," ECF No. 1.) Plaintiff claims that Defendants violated his Eighth Amendment rights by discontinuing Plaintiff's morphine prescription and denying his grievance and subsequent appeals. (See id. at 3-5.) Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his Complaint, instead filing a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.)

I. Plaintiff's Motion to Proceed IFP

All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.¹ See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a "certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the precedingmonth's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust account statement pursuant to 28 U.S.C. Section 1915(a)(2) and Civil Local Rule 3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff's trust account activity, as well as the attached prison certificate verifying his available balances. (See ECF No. 3, at 1-3.) These documents show that he carried an average monthly balance of $0.03 and had $0.00 in average monthly deposits to his trust account for the six months preceding the filing of this action, and that Plaintiff had an available balance of just $0.17 at the time of filing. (See id.)

Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2), and declines to impose the initial partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1), which would be a fraction of a cent in any event, because his prison certificate indicates he may currently have "no means to pay it." See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. Section 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay . . . due to the lack of funds available to him when payment is ordered."). Instead, the Court directs the Secretary of the CDCR, or his designee, to collect the entire $350 balance of the filing fees required by 28 U.S.C. Section 1914 and to forward them to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. Section 1915(b)(1).

///

///

///

II. Initial Screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A

A. Standard of Review

Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-Answer screening pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). "The purpose of [screening] is 'to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

"The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under [Section] 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to Section 1915A "incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)"). Rule 12(b)(6) requires a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. While the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

B. Factual Allegations

Plaintiff alleges that following a back surgery in May 2018 he was prescribed two pain medications, morphine and Lyrica. (Compl. at 3.) Although Plaintiff alleges that he was in moderate pain even while taking these medications, his pain was managed sufficiently for him to sleep and eat normally. (Id.) In January 2019, Defendant Dr. Ronald Zhang told Plaintiff that he was discontinuing Plaintiff's morphine prescription "because (1) there was no morphine detected on [Plaintiff's] urine test," and (2) because Plaintiff kept "bothering" Zhang about his persistent back pain. (Id.)

Plaintiff contends that once he stopped receiving morphine, his pain quickly escalated, consistently reaching 9/10 or 10/10 in intensity. (See id.) The pain is so severe that Plaintiff does not feel hungry, and when he does eat he often feels ill. (See id.) Additionally, Plaintiff alleges that the pain prevents him from sleeping, which increases his anxiety and gives him suicidal thoughts. (See id.) As a result, Plaintiff asked to see Dr. Zhang again, and "basically told him that [his] pain is in a level 10 constantly, which [is] intentionally inflicting pain on [him] . . . ." (Id.) Nevertheless, Zhang refused Plaintiff's requests to renew his morphine prescription, allegedly telling Plaintiff that he "didn't care about [Plaintiff's] pain." (Id.) Plaintiff alleges that this conduct constituted deliberate indifference to Plaintiff's medical conditions, violated his Eighth Amendment right to medical care, and constitutes cruel and unusual punishment. (Id.)

Dissatisfied with Zhang's decision, Plaintiff submitted a prison grievance. (See id. at 4.) As part of the grievance procedure, Plaintiff was initially interviewed by a nurse, Defendant M. Sousley. (Id. at 4.) Although Plaintiff's allegations are somewhat unclear, Sousley apparently explained that Dr. Zhang's decision could not be reversed through the grievance process, and subsequently denied Plaintiff's grievance. (See id.) Plaintiff alleges that Soulsey ignored various facts in denying the grievance, namely the details of Plaintiff's pain, which Plaintiff argues constitutes an emergency or situation requiring urgent

///intervention. (See id.) As a result, Plaintiff argues that Sousley should be held liable for deliberate indifference and cruel and unusual punishment. (See id.)

Plaintiff levels similar claims against Defendant S. Roberts, who is the chief medical executive, and Defendant S. Gates, the chief of health care appeals, both of whom reviewed Plaintiff's appeals of Sousley's decision denying Plaintiff's grievance. (See id. at 5.) Plaintiff, based on the medical records he submitted in connection with his appeals, argues that Defendants Roberts and Gates knew that Plaintiff was experiencing serious pain and, despite having the authority to intervene, chose not to. (See id.) Plaintiff asserts that these actions also constitute deliberate indifference and cruel and unusual punishment. (Id.)

C. Eighth Amendment

Defendant Zhang....