Bondurant v. Booth, No. 3:2016cv02254 - Document 5 (S.D. Cal. 2016)
Court Description: ORDER Granting 4 Motion for Leave to Proceed in forma pauperis; Dismissing Complaint for Failing to State a Claim. The Court: DIRECTS the Watch Commander of GBDF, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the am ount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Court DIRECTS the Clerk of the Court to serve a copy of this Order on the Watch Commander. GRANTS Plaintiff forty-five (45) days leave in which to file an Amended Compl aint which cures all the deficiencies of pleading described in this Order. Signed by Judge Gonzalo P. Curiel on 10/5/16. (All non-registered users served via U.S. Mail Service)(Copy mailed to Watch Commander and blank 1983 complaint mailed to plaintiff. dlg)
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1 s 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 TRAVIS BONDURANT, Booking # 1573088, vs. 14 16 ORDER: Plaintiff, 13 15 Case No.: 3:16-cv-02254-GPC-JLB 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF. No. 4] NANCY BOOTH Defendants. AND 17 2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 18 19 20 21 Plaintiff, Travis Bondurant, is a pretrial detainee at George Bailey Detention 22 Facility (“GBDF”). He has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 23 (ECF No. 1) and a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 24 § 1915(a) (ECF No. 4). Because Plaintiff’s Motion to Proceed IFP complies with 28 25 26 27 U.S.C. § 1915(a)(2), the Court grants him leave to proceed without full prepayment of the civil filing fees required by 28 U.S.C. § 1914(a), but dismisses his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) pursuant to 28 U.S.C. 28 1 3:16-cv-02254-GPC-JLB 1 § 1915(e)(2) and § 1915A(b). 2 I. 3 Plaintiff’s Motion to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 8 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 9 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 10 Bruce v. Samuels, __ S. Ct. __, 136 S. Ct. 627, 629 (U.S. 2016); Williams v. Paramo, 11 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 12 dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 13 Cir. 2002). 14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 15 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 18 trust account statement, the Court assesses an initial payment of 20% of (a) the average 19 monthly deposits in the account for the past six months, or (b) the average monthly 20 balance in the account for the past six months, whichever is greater, unless the prisoner 21 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 22 custody of the prisoner then collects subsequent payments, assessed at 20% of the 23 preceding month’s income, in any month in which his account exceeds $10, and forwards 24 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 25 26 1 27 28 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. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:16-cv-02254-GPC-JLB 1 Bruce, 136 S. Ct. at 629. 2 In support of his IFP motion, Plaintiff has submitted a copy of his San Diego 3 Sheriff’s Department inmate trust account activity over the course of the last year. See 4 Doc. No. 2 at 5; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 5 1119. This statement shows that his current available balance is zero (ECF No. 4 at 6), 6 and it appears Plaintiff is unable to pay any initial fee at this time. See 28 U.S.C. 7 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 8 civil action or appealing a civil action or criminal judgment for the reason that the 9 prisoner has no assets and no means by which to pay [a] initial partial filing fee.”); Bruce, 10 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a 11 “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to 12 pay . . . due to the lack of funds available to him when payment is ordered.”). Therefore, the Court grants Plaintiff leave to proceed IFP, declines to “exact” any 13 14 initial filing fee because his trust account statement shows he “has no means to pay it,” 15 Bruce, 136 S. Ct. at 629, and directs the Watch Commander at GBDF to collect the entire 16 $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them to the 17 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 18 § 1915(b)(1). See id. 19 II. 20 Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre- 21 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 22 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 23 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 24 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 25 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 26 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 27 the targets of frivolous or malicious suits need not bear the expense of responding.’” 28 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford 3 3:16-cv-02254-GPC-JLB 1 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 2 “The standard for determining whether a plaintiff has failed to state a claim upon 3 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 4 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 5 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 6 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 7 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 8 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 9 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 10 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 11 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 12 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 13 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 14 relief [is] ... a context-specific task that requires the reviewing court to draw on its 15 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 16 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 17 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 18 (9th Cir. 2009). 19 A. 20 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 42 U.S.C. § 1983 21 privileges, or immunities secured by the Constitution and laws” of the United States. 22 Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must 23 allege two essential elements: (1) that a right secured by the Constitution or laws of the 24 United States was violated, and (2) that the alleged violation was committed by a person 25 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of 26 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 27 /// 28 /// 4 3:16-cv-02254-GPC-JLB 1 B. 2 Plaintiff’s Complaint contains very few factual allegations. He alleges that he 3 “complained of severe pain” on May 13, 2016. (ECF No. 1 at 3.) Plaintiff further alleges 4 that he had previously suffered from a bullet wound to his abdomen which caused him to 5 be on “life support” for several months. (Id.) Plaintiff claims that the “Chief Medical 6 Supervisor” at GBDF has deprived him of his pain medication.” (Id.) 7 Inadequate Medical Care Prison officials are liable only if they are deliberately indifferent to the prisoner’s 8 serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); see also Clouthier 9 v. Cnty. of Contra Costa, 591 F.3d 1232, 1241-44 (9th Cir. 2010) (applying Estelle’s 10 Eighth Amendment deliberate indifference standard to inadequate medical care claims 11 alleged to violate a pretrial detainees’ due process rights). 12 Here, Plaintiff claims he is recovering from a gunshot wound. The Court finds 13 these allegations, while sparse, are sufficient “factual matter” which indicate that his 14 medical needs were objectively serious. See McGuckin v. Smith, 974 F.2d 1050, 1059 15 (9th Cir. 1991) (defining a “serious medical need” as one which the “failure to treat ... 16 could result in further significant injury or the ‘unnecessary and wanton infliction of 17 pain.’”), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 18 Cir. 1997) (en banc) (citing Estelle, 429 U.S. at 104). The “existence of an injury that a 19 reasonable doctor or patient would find important and worthy of comment or treatment; 20 the presence of a medical condition that significantly affects an individual’s daily 21 activities; or the existence of chronic and substantial pain are examples of indications that 22 a prisoner has a ‘serious’ need for medical treatment.” McGuckin, 974 F.3d at 1059-60. 23 However, while the Court finds that Plaintiff has shown that he has a serious 24 medical need, his Complaint lacks sufficient factual allegations to find that a “reasonable 25 inference that [any individual] defendant” acted with deliberate indifference to his plight. 26 Iqbal, 556 U.S. at 678. “In order to show deliberate indifference, an inmate must allege 27 sufficient facts to indicate that prison officials acted with a culpable state of mind.” 28 Wilson v. Seiter, 501 U.S. 294, 302 (1991). The indifference to medical needs also must 5 3:16-cv-02254-GPC-JLB 1 be substantial; inadequate treatment due to malpractice, or even gross negligence, does 2 not amount to a constitutional violation. Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 3 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal standard.”) 4 (citing Hallett v. Morgan, 296 F.3d 732, 1204 (9th Cir. 2002); Wood v. Housewright, 900 5 F.2d 1332, 1334 (9th Cir. 1990)). 6 Here, Plaintiff’s allegations suggest that he is seeking a specific form of pain 7 medication and it is not at all clear that Plaintiff was not provided with any pain 8 medication. Plaintiff seeks injunctive relief in the form of an order from this Court 9 seeking that his medication be “reinstated.” (ECF No. 1 at 7.) A difference of opinion 10 between a pretrial detainee and the doctors or other trained medical personnel at the Jail 11 as to the appropriate course or type of medical attention he requires does not amount to 12 deliberate indifference, see Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing 13 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), and any delay in providing an 14 appropriate course of treatment does not by itself show deliberate indifference, unless the 15 delay is alleged have caused harm. See McGuckin, 974 F.2d at 1060; Shapley v. Nevada 16 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 17 Without more, Plaintiff’s Complaint currently amounts only to “unadorned, the 18 defendant[s]-unlawfully-harmed-me accusation[s],” which “stop[] short of the line 19 between possibility and plausibility of ‘entitlement to relief’” as to any constitutionally 20 inadequate medical care claim. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 21 555, 557). 22 C. 23 A pro se litigant must be given leave to amend his or her complaint to state a claim Leave to Amend 24 unless it is absolutely clear the deficiencies of the complaint cannot be cured by 25 amendment. See Lopez, 203 F.3d at 1130 (noting leave to amend should be granted when 26 a complaint is dismissed under 28 U.S.C. § 1915(e) “if it appears at all possible that the 27 plaintiff can correct the defect”). Therefore, while the Court finds Plaintiff’s Complaint 28 fails to state any claim upon which relief can be granted, it will provide him a chance to 6 3:16-cv-02254-GPC-JLB 1 fix the pleading deficiencies discussed in this Order. See Akhtar v. Mesa, 698 F.3d 1202, 2 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 3 III. Conclusion and Order 4 Good cause appearing, the Court: 5 1. 6 7 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Watch Commander of GBDF, or his designee, to collect from 8 Plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 9 payments from his account in an amount equal to twenty percent (20%) of the preceding 10 month’s income and forwarding those payments to the Clerk of the Court each time the 11 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 12 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 13 ASSIGNED TO THIS ACTION. 14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on the Watch 15 Commander, George Bailey Detention Facility, 446 Alta Road, Ste. 5300, San Diego, 16 California, 92158. 17 18 19 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 5. GRANTS Plaintiff forty-five (45) days leave in which to file an Amended 20 Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is 21 cautioned, however, that should he choose to file an Amended Complaint, it must be 22 complete by itself, comply with Federal Rule of Civil Procedure 8(a), and that any claim 23 not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 24 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 25 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 26 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 27 amended pleading may be “considered waived if not repled.”). 28 7 3:16-cv-02254-GPC-JLB 1 If Plaintiff fails to follow these instructions and/or files an Amended Complaint 2 that still fails to state a claim, his case may be dismissed without further leave to amend. 3 See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 4 advantage of the opportunity to fix his complaint, a district court may convert the 5 dismissal of the complaint into dismissal of the entire action.”). 6 6. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a 7 blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. 8 § 1983” for his use in amending. 9 10 IT IS SO ORDERED. 11 12 Dated: October 5, 2016 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:16-cv-02254-GPC-JLB
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