Rasuwl v. Hays
| Decision Date | 29 October 2019 |
| Docket Number | Case No. 19cv1832-MMA (WVG) |
| Parties | ALMALIK RASUWL, CDCR #BK-0601, Plaintiff, v. MARK HAYS, Captain; FRANK CLAMSER, Assistant Sheriff; APRIL SIPPERLEY, Sergeant; JUSTIN WHITE, Lieutenant, Defendants. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS;
Plaintiff Almalik Rasuwl, a prisoner currently incarcerated at the California Institution for Men ("CIM"), and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., Doc. No. 1. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Doc. No. 5. In his Complaint, Plaintiff alleges that his constitutional rights were violated when he was a pre-trial detainee housed at the San Diego Central Jail ("SDCJ").
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. § 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, ___ 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).
In support of his IFP Motion, Plaintiff has submitted a Prison Certificate signed by a trust account official at CIM, together with a certified copy of his CDCR InmateStatement Report showing his trust account activity at the time of filing. See Doc. No. 5 at 5-6; see also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These statements show that Plaintiff carried an average monthly balance of $84.53, and had $54.14 in average monthly deposits to his account over the 6-month period immediately preceding the filing of his Complaint. He had an available balance of $36.18 at the time of filing. See Doc. No. 5 at 6.
Based on this accounting, the Court GRANTS Plaintiff's Motion to Proceed IFP and assesses his initial partial filing fee to be $16.91 pursuant to 28 U.S.C. § 1915(b)(1).
However, the Court will direct the Secretary of the CDCR, or his designee, to collect the initial fee assessed only if sufficient funds are available in Plaintiff's account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (). 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).
Notwithstanding Plaintiff's IFP status or the payment of any filing fees, the PLRA also obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing," and ideally before the service of process upon any Defendant. See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Courtmust sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). "The purpose of § 1915[] 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, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
All complaints must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "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" falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) ().
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 essentialelements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff's factual allegations are far from clear. Plaintiff appears to allege that he had been prescribed medication for his "P.T.S.D., depression, [and] anxiety medications" prior to being housed at the SDCJ. Compl., ECF No. 1, at 3. However, after Plaintiff was housed at SDCJ, he claims that he has not been provided his medication. Id. As a result, Plaintiff alleges he "could not sleep because of reoccurring nightmares." Id.
On June 4, 2019, Plaintiff claims he "witnessed a mutual combat fight" for which he "requested trauma counseling." Id. at 4. At the time of this fight, Plaintiff alleges that he had not had his "PTSD medication" for five (5) days. Id. Plaintiff claims that he made two to three "sick call" requests but they went ignored until he was "transferred to Vista Veteran Module." Id. On July 2, 2019, Plaintiff was "put back" on his medications but "at a lower dose because of 30 day break."2 Id.
"Section 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 and citations 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).
A pretrial detainee's claim of the denial of the right to adequate medical or mental health care is analyzed under an objective deliberate indifference standard. See Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). The elements of such a claim are: "(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering...
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