Haynes v. Chau

• Decision Date: 16 March 2020
• Docket Number: Case No.: 3:19-cv-02257-JAH-KSC
• Court: U.S. District Court — Southern District of California
• Parties: EARL EUGENE HAYNES, CDCR #H-23481, Plaintiff, v. Dr. JOHN CHAU, Physician & Surgeon; Dr. D. ROBERTS, Chief Medical Executive; Sgt. M. ARTEGA, Correctional Sergeant, Defendants.

EARL EUGENE HAYNES, CDCR #H-23481, Plaintiff, v. Dr. JOHN CHAU, Physician & Surgeon; Dr. D. ROBERTS, Chief Medical Executive;Sgt. M. ARTEGA, Correctional Sergeant, Defendants.

Case No.: 3:19-cv-02257-JAH-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

March 16, 2020

ORDER:

1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2]

2) DISMISSING DEFENDANTS AND CLAIMS PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

3) GRANTING MOTION TO AMEND AND DENYING MOTION FOR TEMPORARY RESTRAINING ORDER [ECF Nos. 6, 8]

AND

4) DIRECTING U.S. MARSHAL TO EFFECT SERVICE UPON DEFENDANT CHAU PURSUANT TO 28 U.S.C. § 1915(d) AND Fed. R. Civ. P. 4(c)(3)

Earl Eugene Haynes ("Plaintiff"), currently incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, is proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff seeksto sue his¹ treating physician at RJD, Dr. John Chau, RJD's Chief Medical Executive, Dr. D. Roberts, and Correctional Sergeant M. Artega, alleging they all failed to provide him adequate medical care and/or accommodations for a ventral hernia he developed sometime between June and September 2019. See id. at 10-16.

Plaintiff has not paid the filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. He has also submitted another document entitled "Order to Show Cause & Temporary Restraining Order," which the Court accepted for filing in light of his pro se status despite its non-compliance with Local Civil Rules 7.1.b and 7.1.f.1, and construes as a Motion for a Temporary Restraining Order ("TRO") pursuant to Fed. R. Civ. P. 65. See ECF Nos. 5, 6; Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) ("Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints."). Plaintiff has since filed an additional Motion seeking leave to amend his previous Motion for TRO. See ECF No. 8.

I. 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 $400.² 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. § 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 granted leave to proceedIFP remains obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, ___ U.S. ___, 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 preceding month'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 copy of his CDCR Inmate Statement Report as well as a Prison Certificate completed by an accounting officer at RJD. See ECF No. 3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements show Plaintiff maintained an average monthly balance of $254.23, and had $163.28 in average monthly deposits credited to his account over the 6-month period immediately preceding the filing of his Complaint. His available balance as of November 26, 2019, however, was only $22.53. See ECF No. 3 at 1, 3.

Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) and assesses his initial partial filing fee to be $50.84 pursuant to 28 U.S.C. § 1915(b)(1). Because his available balance at the time of filing was insufficient to cover this initial fee, however, the Court will direct the Secretary of the CDCR, or his designee, to collect it only if sufficient funds are available in Plaintiff's account at the time this Order isexecuted. 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."); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 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."). The remaining balance of the $350 total fee owed in this case must be collected by the agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2).

II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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. § 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. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 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 § 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 § 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.

Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" or "unadorned, the defendant-unlawfully-harmed me accusation[s]" fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the Court may consider exhibits attached to his Complaint. See Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978) ("[M]aterial which is properly submitted as part of the complaint may be considered" in ruling on a Rule 12(b)(6) motion to dismiss.)).

B. Plaintiff's Factual Allegations

On May 29, 2019, Plaintiff was admitted to Alvarado Hospital from RJD for a hiatal hernia³ surgery performed by Justin King, M.D. See Compl. ¶¶ 9-10. While in post-op recovery at Alvarado, and still under Dr. King's care, Plaintiff developed a "fascial dehiscence within the incision site," which required a second surgery on June 4, 2019. Id. ¶ 13. On June 5, 2019, Plaintiff was discharged from Alvarado to RJD's Correctional Treatment Center ("CTC"), where he remained in post-op recovery andunder the care of Dr. D. Clayton. Id. ¶¶ 15-16.⁴ On June 20, 2019, he was returned to RJD's E-Facility for further post-op "recovery, wound care, & monitoring" by Dr. Chau. Id. ¶ 17.

On June 25, 2019, Plaintiff continued to experience abdominal pain and "noticed the first signs of swelling & distension." Id. ¶ 19. He was examined by Dr. Chau who noted Plaintiff's complaints of "mild abdominal discomfort," but "no fever or chills." See Pl.'s Ex. F, ECF No. 1 at 21. Dr. Chau's progress notes also included an "Assessment Plan" indicating a "follow-up with surgery" had been scheduled in 2 days. Id. at 22.⁵ Plaintiff claims, however, that "27 June 2019 came & went with no follow up." See Compl., ¶ 20.

On July 11, 2019, Plaintiff was summoned or "ducated" to see Dr. Chau for a post-op consultation "initiated by Dr....