Sliwinski v. Maysent

• Court: U.S. District Court — Southern District of California
• Writing for the Court: Hon. Cathy Ann Bencivengo United States District Judge
• Decision Date: 13 February 2019
• Docket Number: Case No.: 3:18-cv-2653-CAB-RBB
• Citation: Sliwinski v. Maysent, Case No.: 3:18-cv-2653-CAB-RBB (S.D. Cal. Feb 13, 2019)
• Parties: THOMAS EMIL SLIWINSKI, ID #2046133, Plaintiff, v. PATTY MAYSENT, C.E.O., U.C. San Diego Health, et al. Defendants.

THOMAS EMIL SLIWINSKI, ID #2046133, Plaintiff, v. PATTY MAYSENT, C.E.O., U.C. San Diego Health, et al. Defendants.

Case No.: 3:18-cv-2653-CAB-RBB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

February 13, 2019

ORDER:

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

AND

2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b)

Thomas Emil Sliwinski ("Plaintiff") is currently incarcerated at Montana State Prison in Deer Lodge, Montana. He is proceeding pro se, and has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See Compl, ECF No. 1.)

Plaintiff claims Patty Maysent, the C.E.O. of U.C. San Diego Health ("UCSD"), two UCSD doctors, a caseworker, several other unidentified doctors named only as John Doe #1, 2, and 3, and an "Unknown Mesh Mfg." violated his Eighth Amendment rights and committed acts of negligence with respect to his medical needs while he was a patient in their care from October 28, 2015, through January 3, 2016. (Id. at 1-3.) He seeks declaratory and injunctive relief as well as compensatory and punitive damages. (Id. at 7-8.)

Plaintiff did not prepay the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action at the time he filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.)

I. Motion to Proceed In Forma Pauperis

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, ___ S. Ct. ___, 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 monthlybalance 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 Montana State Prison Resident Statement which attests as to his balances and deposits over the 6-month period preceding the filing of his Complaint. See ECF No. 2 at 4-8; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These documents show Plaintiff carried an average monthly balance of $33.20, and that he had $44.25 in average monthly deposits to his trust account for the 6-months preceding the filing of this action. However, Plaintiff also had an available balance of only $1.75 to his credit at the time of filing. See ECF No. 2 at 4-8.

Thus, the Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 2) and assesses his initial partial filing fee to be $8.85 pursuant to 28 U.S.C. § 1915(b)(1). Because Plaintiff also had less than that on the books at the time of filing, however, see ECF No. 2 at 4, the Court will direct the Warden of Montana State Prison, or his designee, to collect the initial $8.85 fee 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) (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. Screening of Complaint pursuant to 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 Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); 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)). A complaint is "frivolous" if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 324 (1989).

"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).

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).

B. Plaintiff's Allegations

Plaintiff contends that he "was brought to UCSD" "by Homeland Security after [he] was arrested in Mexico on or about October 25, 2015 with stab wounds to the stomach." (See Compl., ECF No. 1 at 3.) He "does not remember much" from October 28, 2015, through December 11, 2015, but he alleges to have undergone "13 surgeries," and to have had a "mesh" installed on or about November 2015. (Id.) Plaintiff recalls "giving permission to do a 'skin graph' one time," but claims he does not recall consenting to any other surgery or medical treatment. (Id.)

After he was discharged, on or about January 3, 2016, Plaintiff was first "taken to San Diego County Jail," and thereafter transported to Lewis & Clark County Jail in Helena, Montana. (Id.) Plaintiff "is now at Montana State Prison," and claims to have "nothing but life threatening medical problems caused by what the doctors at UCSD [did] to him." (Id.) He claims Defendants "should have checked to make sure [he] was well enough to be discharged," "should [have] taken care and read the instructions on how to install the 'mesh,'" "should [have] found [his] next [o]f kin' for permission" to treat him, and made "numerous mistakes" which have since caused him "numerous infections." (Id. at 5.)

Plaintiff concludes Defendants should be found liable for "ministerial neglect" and cruel and unusual punishment. (Id. at 6.) He seeks declaratory and injunctive relief requiring Defendants to pay for a "new surgery," as well as unspecified amounts of compensatory and punitive damages. (Id. at 8.)

C. 42 U.S.C. § 1983

Section 1983 is a "vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). But it is not merely a "font of tort law." Parratt v. Taylor,451 U.S. 527, 532 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Graham v. Connor, 490 U.S. 386, 393-94 (1989) (Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.") (internal quotation marks and citations omitted).

Therefore, to state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the...