Thomas v. Chu
| Decision Date | 09 September 2020 |
| Docket Number | Case No.: 3:20-cv-00245-GPC-BGS |
| Parties | KEITH THOMAS, CDCR #T-67081, Plaintiff, v. CHU, Physician; BASTO, Dietician; POLLAN, Warden; GLYNN, Chief Medical Officer, Defendants. |
| Court | U.S. District Court — Southern District of California |
(1) GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS [ECF No. 2]
3) DENYING MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER [ECF No. 4]
Plaintiff Keith Thomas, currently incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1 at 1. Plaintiff did not pay the filing fee required by 28 U.S.C. § 1914(a) at the time of filing; instead, he submitted a certified Prison Certificate and CDCR Inmate Statement Report, which the Court construes as a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Plaintiff has also filed a "Motion Order to Show Cause for a Preliminary Injunction & Temporary Restraining Order ("TRO")," attached to which are more than a hundred pages of exhibits and two declarations offered in support both of his TRO and his Complaint. See ECF No. 4 at 9-18, 87-97.
Plaintiff's Complaint itself is sparse. He alleges he faces "threats of violence" from his cellmate due to his medical vulnerabilities, claims RJD dietician Basto denied him a dietary supplement, and contends Warden Pollan1 failed to immediately place him in the "GP"2 based on an "agreement [to] withdraw[] [his] 602 appeal." Compl., ECF No. 1 at 3. Plaintiff does not identify specific constitutional bases for any of these claims; but with respect to all three, he refers to the factual allegations contained in the declarations attached to his TRO, and his TRO invokes both the Eighth and Fourteenth Amendments.3 Id.; see also ECF No. 4 at 2, 9-18, 87-97. Plaintiff seeks an "immediate emergency injunction" requiring his "single cell" and "GP status," the "renewal of diet[ary supplements]," and $200,000 in general and punitive damages. See Compl. at 7.
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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 $400.4 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 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); Bruce, 136 S. Ct. at 629.
/ / / Plaintiff has submitted a copy of his CDCR Inmate Statement Report as well as a Prison Certificate completed by an accounting officer at RJD, which the Court construes as his request to proceed IFP. See ECF No. 2; ECF No. 4; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This certificate and statements show Plaintiff has carried no average monthly balance, has had no monthly deposits credited to his account over the 6-month period immediately preceding the filing of his Complaint, and had no available funds to his credit at the time of filing. See ECF No. 2 at 1.
Therefore, the Court GRANTS Plaintiff leave to proceed IFP (ECF No. 2) and assesses no initial partial filing fee.5 See 28 U.S.C. § 1915(b)(1), (b)(4) (); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (). However, the Court directs the Secretary of the CDCR, or his designee, to garnish the $350 total fee owed in this case from Plaintiff's trust account and to forward the full filing fee owed for this case to the Clerk of the Court in installments pursuant to 28 U.S.C. § 1915(b)(2).
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a preliminary review and initial screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).6 Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion thereof, if it 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) (). Rules 8(a) and 12(b)(6) require a complaint to "contain sufficient factualmatter, 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. And 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 essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
"Courts must consider the complaint in its entirety," including "documents incorporated into the complaint by reference" to be part of the pleading when determining whether the plaintiff has stated a claim upon which relief may be granted.7 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) ().
B. Plaintiff's Allegations
As noted above, Plaintiff's Complaint broadly outlines what appear to be three separate claims for relief, refers the Court to his declarations and exhibits in support, and names the following Defendants: Dr. Chu, Chief Medical Officer Glynn, Warden Pollan, and a dietician named Basto. See Compl., ECF No. 1 at 2-3.
In Claim 1, Plaintiff alleges he wears a diaper as the result of incontinence, and that this and renders him vulnerable to "threats of violence" at the hands of inmate Thedford, his cellmate, who may be exposed to an "uncontoll[ed] mishap." Id. at 3. Sometime in 2019, Plaintiff contends he was treated by Dr. King at Alvarado Hospitaland to have undergone a colonoscopy at "La Jolla San Diego Medical Hospital." See ECF No. 4 at 87-88. While he had a "dispute" with inmate Robinson who was his cellmate at the time, Robinson was "moved to CCCMS Building II, and Plaintiff was thereafter left "alo[ne] for two months," during which he attended follow-up "tele-med" appointments with "different physicians" and was supplied diapers and sanitary supplies. Id. at 88.
Plaintiff alleges he is assigned to RJD's C-Yard in the "EOP Building," and that Dr. Chu "was assigned to [the] EOP medical clinic."8 After his colonoscopy, Plaintiff "was still wearing [a] diaper," but was given a new cellmate named Thedford. Id. Because Plaintiff "experience[d] the same complaint[s] with ... Thedford as he had before with Robinson, Plaintiff "visit[ed] Dr. Chu about [his] incontinen[ce]," and "asked to be place[d] on single cell status."9 Id. Plaintiff claims Dr. Chu refused "because he can...
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