1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN ROMERO LEMUS, Case No.: 3:25-cv-00162-RBM-BLM

CDCR #P-78464,

12

ORDER:

Plaintiff, 13 vs. (1) GRANTING MOTION TO 14

PROCEED IN FORMA PAUPERIS

TOR ROBINSON, Physician’s Assistant, 15 Defendant. (2) DISMISSING COMPLAINT 16

PURSUANT TO 28 U.S.C.

17 §§ 1915(e)(2) & 1915A(b) 18 19 Plaintiff Benjamin Romero Lemus (“Plaintiff”), an inmate incarcerated at Calipatria 20 State Prison in Calipatria, California, proceeding pro se, filed a Complaint under 42 U.S.C. 21 § 1983 (“Complaint”). (Doc. 1.) Plaintiff also filed a Motion and Declaration Under 22 Penalty of Perjury in Support of Motion to Proceed In Forma Pauperis (“IFP Motion”) 23 (Doc. 2). For the reasons discussed below, Plaintiff’s IFP Motion (Doc. 2) is GRANTED, 24 and the Complaint (Doc. 1) is DISMISSED. 25 I. IFP MOTION 26 All parties instituting any civil action, suit, or proceeding in a District Court of the 27 United States, except for an application for writ of habeas corpus, must pay a filing fee of 28 1 $405, consisting of a $350 statutory fee plus a $55 administrative fee. The action may 2 proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to 3 proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 4 1051 (9th Cir. 2007) (“Plaintiffs normally must pay $350 to file a civil complaint in federal 5 district court, 28 U.S.C. § 1914(a), but 28 U.S.C. § 1915(a)(1) allows the district court to 6 waive the fee, for most individuals unable to afford it, by granting IFP status.”). 7 A prisoner seeking leave to proceed IFP must submit a “certified copy of the trust 8 fund account statement (or institutional equivalent) for . . . the 6-month period immediately 9 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 10 1113, 1119 (9th Cir. 2005) (noting that “prisoners must demonstrate that they are not able 11 to pay the filing fee with an affidavit and submission of their prison trust account records”). 12 From the certified trust account, “[t]he [C]ourt shall assess and, when funds exist, collect, 13 as a partial payment of any court fees required by law, an initial partial filing fee of 20 14 percent of the greater of—(A) the average monthly deposits to the prisoner’s account; or 15 (B) the average monthly balance in the prisoner’s account for the 6-month period 16 immediately preceding the filing of the complaint or notice of appeal.” 28 U.S.C. 17 § 1915(b)(1). “Thereafter, to complete payment of the filing fee, prisoners must pay, in 18 monthly installments, ‘20 percent of the preceding month’s income credited to the 19 prisoner’s account.’” Bruce v. Samuels, 577 U.S. 82, 84 (2016) (quoting 28 U.S.C. 20 § 1915(b)(2)). However, “[i]n no event shall a prisoner be prohibited from bringing a civil 21 action or appealing a civil or criminal judgment for the reason that the prisoner has no 22 assets and no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4). 23 In support of his IFP Motion, Plaintiff submitted a copy of his California Department 24 of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and Prison 25

26 27 1 The administrative fee does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 28 Schedule, No. 14 (eff. Dec. 1, 2023)). 1 Certificate attested to by a CDCR trust account official. (Doc. 2 at 4.) The document 2 shows he has an average monthly balance of $29.98 and average monthly deposits of 3 $38.50, with an available balance of $0.11. Id. Accordingly, the Court GRANTS 4 Plaintiff’s IFP Motion and declines to assess the $7.70 initial partial filing fee because 5 Plaintiff does not have sufficient funds to pay it. See Taylor v. Delatoore, 281 F.3d 844, 6 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 7 dismissal of a prisoner’s IFP case based solely on a “failure to pay”). The Court ORDERS 8 the Secretary of the CDCR or his designee to collect and forward to the Clerk of the Court 9 the $350 filing fee pursuant to the installment payment provisions of 28 U.S.C. 10 § 1915(b)(1)–(2). 11 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) 12 A. Standard of Review 13 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer 14 screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the 15 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 16 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 17 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (quoting 18 and analyzing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 19 2010) (quoting 28 U.S.C. § 1915A(a)–(b)(1)). 20 “The standard for determining whether a plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 23 1108, 1112 (9th Cir. 2012) (citation omitted); see also Wilhelm v. Rotman, 680 F.3d 1113, 24 1121 (9th Cir. 2012) (noting that § 1915A screening “incorporates the familiar standard 25 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 26 12(b)(6)”) (citations omitted). Rule 12(b)(6) requires a complaint to “contain sufficient 27 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 1 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief 2 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 3 experience and common sense.” Id. (citation omitted). 4 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 5 acting under color of state law, violate federal constitutional or statutory rights.” 6 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 7 source of substantive rights, but merely provides a method for vindicating federal rights 8 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quotation 9 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 10 right secured by the Constitution and laws of the United States, and (2) that the deprivation 11 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 12 698 F.3d 1128, 1138 (9th Cir. 2012) (quotation omitted). 13 B. Allegations in the Complaint 14 Plaintiff alleges that on January 25, 2023, while incarcerated at Calipatria State 15 Prison, he had nasal surgery at an outside hospital. (Doc. 1 at 3.) On February 1, 2023, 16 after his return to prison, he had an appointment with Defendant Robinson. (Id. at 6.) 17 During the examination, Defendant Robinson noticed “excessive swelling around 18 [Plaintiff’s] eyes and nose” and said, “let’s remove those,” referring to stitches and a splint. 19 (Id.) Plaintiff asked for a numbing agent for the pain and Defendant Robinson said, “let 20 me consult with myself” and then said, “I don’t think so.” (Id.) Defendant Robinson had 21 Plaintiff recline backwards and inserted a tweezer-like instrument into his left nostril to 22 remove the stitches and splint, “causing plaintiff to cry from excruciating ‘sheer’ 23 unbearable pain.” (Id.) Based on Plaintiff’s reaction, Defendant Robinson said he “needed 24 to read up on the procedure” and left the room. (Id.) When Defendant Robinson returned, 25 Plaintiff asked him why he had started a procedure with which he was unfamiliar, and 26 Defendant Robinson tried the same procedure again and failed. (Id. at 6–7.) “After three 27 violent forceful attempts,” Defendant Robinson removed the splints and stitches. (Id. at 28 7.) 1 Plaintiff was unable to breathe properly and thought Defendant Robinson had 2 damaged his nose, so he submitted a health care services request form requesting urgent 3 care. (Id.) He was seen by a doctor the next day who prescribed antibiotics to combat an 4 infection developing in his lungs. (Id.) Between February and April 2023, Plaintiff was 5 treated for breathing difficulties and claims that Defendant Robinson damaged his nasal 6 structure causing him to contract multifocal pneumonia and chronic bronchitis. (Id. at 8.) 7 Plaintiff states that he endured difficulty with breathing, chest pain, and coughing up green 8 phlegm for 14 months, during which he was prescribed two courses of antibiotics. (Id.) 9 On April 5, 2024, Plaintiff had a teleconference with the doctor who performed the 10 original surgery, who said his nose was “not how he left it” after the first surgery and agreed 11 to a second surgery. (Id. at 9.) The second surgery took place on May 1, 2024. (Id. at 9– 12 10.) Plaintiff claims Defendant Robinson was deliberately indifferent to his medical needs 13 in violation of the Eighth Amendment by conducting a procedure that he was not qualified 14 to perform which resulted in 14 months of pain and suffering and a second surgery. (Id. at 15 10–13.) 16 C. Discussion 17 The Eighth Amendment’s prohibition on the infliction of cruel and unusual 18 punishment “establish[es] the government’s obligation to provide medical care for those 19 whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101–03 (1976). 20 “Deliberate indifference ‘may appear when prison officials deny, delay or intentionally 21 interfere with medical treatment.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 22 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 23 “[A] prison official violates the Eighth Amendment when two requirements are met. 24 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 25 Brennan, 511 U.S. 825, 834 (1994) (citations omitted). Second, Plaintiff must allege the 26 prison official he seeks to hold liable had a “‘sufficiently culpable state of mind’ . . . . 27 [T]hat state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. 28 (citations omitted). A prison official can be held liable only if he “knows of and disregards 1 an excessive risk to inmate health and safety;” he “must both be aware of facts from which 2 the inference could be drawn that a substantial risk of serious harm exists, and he must also 3 draw the inference.” Id. at 837. 4 The Court finds that, although not specified, Plaintiff’s Complaint plausibly alleges 5 a serious medical need requiring nasal surgery and follow-up care. See Doty v. County of 6 Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of a ‘serious’ medical need include 7 (1) the existence of an injury that a reasonable doctor would find important and worthy of 8 comment or treatment, (2) the presence of a medical condition that significantly affects an 9 individual’s daily activities, and (3) the existence of chronic or substantial pain.”) (citation 10 omitted). However, Plaintiff’s Complaint fails to plausibly allege that Defendant Robinson 11 was deliberately indifferent to that serious medical need in violation of the Eighth 12 Amendment. 13 Deliberate indifference can be shown where the chosen course of medical treatment 14 was “medically unacceptable under the circumstances” and chosen “in conscious disregard 15 of an excessive risk to the prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 16 Cir. 2004) (citation omitted). However, allegations of inadequate medical treatment, 17 medical malpractice, or even gross negligence by themselves do not rise to the level of an 18 Eighth Amendment violation. See Farmer, 511 U.S. at 835–36 (explaining that negligence 19 does not amount to deliberate indifference). 20 Plaintiff alleges that Defendant Robinson was unqualified to perform the procedure 21 to remove the splint and stitches and that Defendant Robinson stopped during the first 22 attempt when Plaintiff cried in pain, excused himself because he “needed to read up on the 23 procedure,” and then removed the splint and stitches on the third try. (Doc. 1 at 6–7.) 24 Plaintiff alleges that Defendant Robinson unnecessarily caused pain during the procedure 25 by declining Plaintiff’s request for a numbing agent and caused complications resulting in 26 pain and suffering for the next 14 months and necessitating a second surgery. (Id. at 610.) 27 The Court finds that, at most, Plaintiff alleges negligence or medical malpractice in 28 the way Defendant Robinson removed Plaintiff’s stitches and splint. As explained above, 1 allegations of negligence are insufficient to state an Eighth Amendment deliberate 2 indifference claim. See Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been 3 negligent in diagnosing or treating a medical condition does not state a valid claim of 4 medical mistreatment under the Eighth Amendment.”). Plaintiff’s Eighth Amendment 5 deliberate indifference to a serious medical need claim is DISMISSED sua sponte pursuant 6 to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) for failure to state a claim. See Watison, 668 7 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 8 However, in light of Plaintiff’s pro se status, the Court grants him leave to amend 9 his Complaint in order to attempt to address the pleading deficiencies identified in this 10 Order. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should 11 not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the 12 deficiencies of the complaint could not be cured by amendment.”) (internal quotations 13 omitted). 14 III. CONCLUSION 15 Accordingly, the Court: 16 1) GRANTS Plaintiff’s Motion to Proceed IFP (Doc. 2). 17 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 18 Plaintiff’s prison trust account the $350.00 filing fee by collecting monthly payments from 19 the account in an amount equal to twenty percent (20%) of the preceding month’s income 20 and forward payments to the Clerk of the Court each time the amount in the account 21 exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 22 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 23 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 24 P.O. Box 942883, Sacramento, California, 94283-0001. 25 4) DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 26 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). 27 5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 28 which to file an amended complaint curing the deficiencies noted above. Any amended 1 |}Complaint must be complete by itself without reference to the original Complaint. 2 ||Defendants not named and any claim not re-alleged in an amended complaint will be 3 || waived. See S.D. Cal. Civ. R. 15.1; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 4 ||2012) (noting that claims may be considered waived if not re-pled). 5 If Plaintiff fails to file an amended complaint within the time provided, the Court 6 || will dismiss this civil action based both on Plaintiffs failure to state a claim upon which 7 relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)@i) and 1915A(b)(1) and his 8 || failure to prosecute the case in compliance with this Order. See Lira v. Herrera, 427 F.3d 9 || 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage of the opportunity to fix 10 || his complaint, a district court may convert the dismissal of the complaint into dismissal of 11 || the entire action.”’) (citation omitted). 12 IT IS SO ORDERED. 13 || DATE: May 7, 2025 14 Laerrnsdln, Wf otasyysD 15 ON. RUTH BERMGDEZ! MONTENEGRO

UNITED STATES DISTRICT JUDGE

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