Kakowski v. Allison
| Decision Date | 21 December 2021 |
| Docket Number | 21cv1675-JAH (RBM) |
| Court | U.S. District Court — Southern District of California |
| Parties | BRIAN KAKOWSKI, CDCR #BF-3315, Plaintiff, v. KATHLEEN ALLISON, Secretary of the California Department of Corrections and Rehabilitation, et al., Defendants. |
(2) DENYING MOTION TO APPOINT COUNSEL, and
(3) DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)
Plaintiff Brian Kakowski, a state prisoner incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff claims his Fourteenth Amendment right to equal protection and his Eighth Amendment right to be free from cruel and unusual punishment were violated because treatment for Hepatitis-C at RJD is delayed until symptoms become severe enough to cause permanent liver damage, and because his Hepatitis-C was in remission until he re-contracted it as a result of inmates handling food who are not tested for communicable diseases. (Id. at 4-15.)
Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time of filing and has instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), along with a separately-filed copy of his inmate trust account statement. (ECF Nos. 2, 4.) He has also filed a Motion to Appoint Counsel. (ECF No. 24.)
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 $402.[1] See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the entire fee only if leave to proceed in forma pauperis (“IFP”) is granted pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) also 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) &(4). The institution collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which the 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). Plaintiff remains obligated to pay the entire fee in monthly installments regardless of whether their action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2).
Plaintiff's prison certificate shows he had an average monthly balance of $1388.47 and average monthly deposits of $247.56 for the 6-months preceding the filing of this action, and an available balance of $19.33. (ECF No. 3 at 1.) The Court GRANTS Plaintiff's Motion to Proceed IFP and declines to impose the initial partial filing fee of $277.69 pursuant to 28 U.S.C. § 1915(b)(1) because his prison certificate indicates he may 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 v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) () Instead, the Court directs the Secretary of the California Department of Corrections and Rehailitation (“CDCR”), or her designee, to collect the entire $350 balance of the filing fee required by 28 U.S.C. § 1914 and to forward it to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
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) & 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 § 1915A 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) (internal quote marks omitted).
“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) () 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), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Id. “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.
Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
Plaintiff alleges in claim one that Defendants CDCR Secretary Kathleen Allison, RJD Warden Marcus Pollard, and Plaintiff's treating physician at RJD, Dr. Clayton, failed to protect him and were deliberately indifferent to his health and safety in violation of equal protection under the Fourteenth Amendment and the prohibition against cruel and unusual punishment under the Eighth Amendment. (ECF No. 1 at 4.) He alleges he re-contracted Hepatitis-C on or about March 17, 2021, as a direct result of the failure of Defendants Allison and Pollard to adhere to prison guidelines, protocols and policies in failing to ensure that inmates who work with food are “medically cleared, ” and by “allowing high risk medical [inmates] with Hepatitis, AIDS, etc. to be volunteers working in and around our food & or kitchen.” (Id.) Plaintiff states he filed a 602-inmate appeal regarding that issue in 2020 which he withdrew after he was told by a supervising cook that inmates were tested every 90 days, only to find out it was not true. (Id. at 5.) He filed a second 602-inmate appeal on that issue which was rejected as untimely, and a third which was ignored. (Id.) Plaintiff states that nothing is being done about testing, and “that for years [inmates] are having sex in bathrooms, sharing needles as they do drugs etc. which all plays a part in ‘failing to protect.'” (Id.) He claims that Defendants Allison and Pollard “have a constitutional and statutory responsibility for the” safety and health of inmates at RJD, and “are responsible for ensuring their subordinates obeyed regulations & ordinances.” (Id. at 6.) He states he “is holding Dr. Clayton accountable as Dr. failed to adhere, investigate or look into acts of deliberate indifference when Plaintiff told Clayton Hep C was recontracted due to him not doing proper medical tests of [inmates] working in the kitchen - once telling Clayton of situation Clayton brushed it off, as if not his problem?” (Id. at 7.)
Plaintiff alleges in claim two that his Eighth and Fourteenth Amendment rights to equal protection and to be free from cruel and unusual punishment were violated because “the process that decides who actually gets treatment for ‘Hep C' is ambiguous, arbitrary and objectively unreasonable.” (Id. at 8.) He contends that treatment for Hepatitis-C at RJD amounts to deliberate indifference to his health because it is...
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