noting that screening pursuant to § 1915A “incorporates the familiar standard 8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 9 12(b)(6)”
How later courts described this case
- noting that screening pursuant to § 1915A “incorporates the familiar standard 8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 9 12(b)(6)”
- finding statements that plaintiff was “ready to commit suicide” were 10 sufficient to show serious medical need
- discussing 28 U.S.C. 28 § 1915A(b)
- discussing 28 U.S.C. 26 § 1915(e)(2)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 McGHEE TONY DUCLOS, Case No.: 3:22-CV-771 JLS (AHG)
CDCR #F-55976,
12
ORDER: (1) GRANTING MOTION
Plaintiff,
13 TO PROCEED IN FORMA
v. PAUPERIS; AND (2) DIRECTING
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U.S. MARSHAL TO EFFECT
15 SERVICE OF SUMMONS AND
R. LA, Correctional Officer; COMPLAINT PURSUANT
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R. GARCIA, Correctional Officer; TO 28 U.S.C. § 1915(d) AND
17 L. NHAN, Correctional Officer; FEDERAL RULE OF CIVIL
JACKA WILLIAMS, Registered Nurse; PROCEDURE 4(c)(3)
18
and NURSE ANELLE, Registered Nurse,
19 Defendants. (ECF Nos. 1, 2)
20
21 Plaintiff McGhee Tony Duclos (“Plaintiff” or “Duclos”), proceeding pro se and
22 incarcerated at Mule Creek State Prison (“MCSP”) in Ione, California, has filed a civil
23 rights complaint pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Duclos alleges
24 Defendants R. La, Correctional Officer; R. Garcia, Correctional Officer; L. Nhan,
25 Correctional Officer; Jacka Williams, Registered Nurse; and Nurse Anelle, Registered
26 Nurse (collectively, “Defendants”) violated his Eighth Amendment rights by failing to
27 properly protect him while he had suicidal thoughts and attempted suicide. See id. at 3–7.
28 Duclos did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time of
1 filing, but instead has filed a Motion to Proceed in Forma Pauperis (“IFP”) pursuant to 28
2 U.S.C. § 1915(a). See ECF No. 2 (“IFP Mot.”).
3 MOTION TO PROCEED IN FORMA PAUPERIS
4 All parties instituting any civil action, suit, or proceeding in a district court of the
5 United States, except an application for writ of habeas corpus, must pay a filing fee of
6 $402. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to
7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The fee is not waived for prisoners, however.
10 If granted leave to proceed IFP, prisoners remain obligated to pay the entire fee in
11 “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 84 (2016); Williams v.
12 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether their actions
13 ultimately are dismissed. See 28 U.S.C. §§ 1915(b)(1) & (2); Taylor v. Delatoore, 281
14 F.3d 844, 847 (9th Cir. 2002).
15 To qualify to proceed IFP, section 1915(a)(2) requires a prisoner to submit a
16 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the
17 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
18 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
19 trust account statement, the Court assesses an initial payment of 20% of (a) the average
20 monthly deposits in the account for the past six months, or (b) the average monthly balance
21 in the account for the past six months, whichever is greater, unless the prisoner has no
22 assets. See 28 U.S.C. § 1915(b)(1); id. § 1915(b)(4). The institution having custody of the
23 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s
24 / / /
25
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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. See
27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
Dec. 1, 2020). The additional $52 administrative fee does not apply to persons granted leave to proceed
28
1 income, in any month in which his account exceeds $10, and forwards those payments to
2 the Court until the entire filing fee is paid. See id. § 1915(b)(2); Bruce, 577 U.S. at 84.
3 In support of his IFP Motion, Duclos has submitted a certified copy of his CDCR
4 Inmate Statement Report. See ECF No. 2 at 7‒8; see also 28 U.S.C. § 1915(a)(2); S.D.
5 Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This financial record shows Duclos had an
6 available balance of $0.00 to his credit at the time of filing. See ECF No. 2 at 7. Therefore,
7 the Court GRANTS Duclos’s IFP Motion and declines to assess any initial partial filing
8 fee pursuant to 28 U.S.C. §§ 1915(a)(1) and (b)(1). See 28 U.S.C. § 1915(b)(4) (providing
9 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing
10 a civil action or criminal judgment for the reason that the prisoner has no assets and no
11 means by which to pay the initial partial filing fee”); Bruce, 577 U.S. at 86; Taylor, 281
12 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing
13 dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of
14 funds available to him when payment is ordered”). Instead, the Court DIRECTS the
15 Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), or
16 her designee, to collect the entire $350 balance of the filing fee required by 28 U.S.C.
17 § 1914 and to forward all payments to the Clerk of the Court pursuant to the installment
18 provisions set forth in 28 U.S.C. § 1915(b)(2).
19 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2)(B) AND 1915A(B)
20 I. Standard of Review
21 Because Duclos is a prisoner and is proceeding IFP, his Complaint requires a pre-
22 answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes,
23 the Court must dismiss sua sponte a prisoner’s IFP complaint, or any portion thereof, that
24 is frivolous, is malicious, fails to state a claim, or seeks damages from immune defendants.
25 See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C.
26 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc));
27 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.
28 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or
1 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
2 903, 920 n.1 (9th Cir. 2014) (citation omitted).
3 “The standard for determining whether a plaintiff has failed to state a claim upon
4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
6 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
7 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
9 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to
10 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
11 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
12 omitted); Wilhelm, 680 F.3d at 1121. Detailed factual allegations are not required, but
13 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
14 statements, do not suffice.” Iqbal, 556 U.S. at 678. And, while the court “ha[s] an
15 obligation where the petitioner is pro se, particularly in a civil rights case, to construe the
16 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,
17 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
18 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially
19 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
20 II. Plaintiff’s Allegations
21 The events at issue occurred when Duclos was incarcerated at R.J. Donovan State
22 Prison (“RJD”) in San Diego, California. See Compl. at 3–7. In Count One, Duclos alleges
23 that, on November 11, 2021, he was at his prison work station with his supervisor,
24 Defendant R. La. Id. at 3. After finishing his work, Plaintiff told La “[he] was done with
25 [his] work” and “that [he] was now going to the back to . . . choke [himself].” La allegedly
26 told Plaintiff she would “write [him] up for talking that freaky shit.” Id. Duclos then went
27 to a closet in the culinary area and attempted suicide by hanging himself. Id. He was taken
28 to the hospital. Id. at 4.
1 In Count Two, Duclos claims that when he returned to RJD on November 12, 2021,
2 he was admitted to the outpatient housing unit and placed on suicide watch. Id. at 4. On
3 the morning of November 13, 2021, Duclos alleges he saw a line attached to the light
4 fixture in his room. Id. He claims he grabbed the line and told a nurse he was going to
5 hang himself. Id. He then attempted suicide again by tying the line to the top bunk and
6 rolling off. Id.
7 Duclos alleges in Count Three that, on November 13, 2021, he was transferred to
8 Lancaster State Prison (“LSP”), admitted to their “crisis bed,” and placed on suicide watch.
9 Id. at 5. He was discharged on November 16, 2021, and on November 19, 2021, he was
10 transferred back to RJD. Id. Upon his arrival at RJD, Plaintiff alleges he was readmitted
11 to a crisis bed by Dr. Soto because “there was a note in [Soto’s] files which indicated that
12 [Duclos] had no intention of making it to [his] birthday” on November 26, 2021. Id.
13 Duclos states that after being awakened by medical staff just after midnight on November
14 20, 2021, for a blood pressure check, he saw a long string under his mattress. Id. Plaintiff
15 claims he told Defendant Nurse Anelle he was going to hang himself with it; he then
16 proceeded to choke himself with the string several times, losing consciousness. Id.
17 Defendants R. Garcia, L. Nhan, and “the nurses” allegedly “[tried] to talk [Duclos] into
18 giving them the string that was around [his] neck.” Id. Duclos then claims he tried to
19 attach the string to a metal box on the ceiling. Id. at 5–6. Duclos alleges his smock fell
20 down, leaving him naked, at which point Defendant Anelle began laughing at him and
21 threatened to “write him up” for indecent exposure. Id. at 6. According to Duclos,
22 Defendant Garcia summoned a sergeant who was able to remove the string from Duclos’s
23 neck. Id.
24 III. Analysis
25 The Eighth Amendment requires that inmates have “ready access to adequate
26 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate
27 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle
28 v. Gamble, 429 U.S. 97, 104 (1976). “A prison official acts with ‘deliberate
1 indifference . . . only if the [prison official] knows of and disregards an excessive risk to
2 inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
3 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on
4 other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)).
5 “Under this standard, the prison official must not only ‘be aware of facts from which the
6 inference could be drawn that a substantial risk of serious harm exists,’ but that person
7 ‘must also draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837
8 (1994)).
9 “Deliberate indifference ‘may appear when prison officials deny, delay or
10 intentionally interfere with medical treatment, or it may be shown in the way in which
11 prison physicians provide medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th
12 Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)).
13 “Inadvertent failures to provide adequate medical care, mere negligence or medical
14 malpractice, delays in providing care (without more), and differences of opinion over what
15 medical treatment or course of care is proper, are all insufficient to constitute an Eighth
16 Amendment violation.” Norvell v. Roberts, No. 20-cv-0512 JLS (NLS), 2020 WL
17 4464454, at *4 (S.D. Cal. Aug. 4, 2020) (citing Estelle, 429 U.S. at 105–07); Wood v.
18 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Sanchez v. Vild, 891 F.2d 240, 242 (9th
19 Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.
20 1985)). Rather, “[t]o ‘show deliberate indifference, the plaintiff must show that the course
21 of treatment the [official] chose was medically unacceptable under the circumstances and
22 that the [official] chose this course in conscious disregard of an excessive risk to the
23 plaintiff’s health.’” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) (quoting
24 Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)). “[A] purposeful act or failure
25 to respond to a prisoner’s pain or possible medical need” that causes harm is sufficient to
26 establish deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
27 “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could
28 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”
1 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104)
2 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
3 1997; Jett, 439 F.3d at 1096; Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir.
4 2016). “A heightened suicide risk or an attempted suicide is a serious medical need.” Conn
5 v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), vacated, 563 U.S. 915 (2011), opinion
6 reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011) (citing Farmer, 511 U.S. at 837;
7 Kamakeeaina v. City & Cnty. of Honolulu, No. 11-cv-00770 JMS, 2014 WL 1691611, at
8 *7 (D. Haw. Apr. 29, 2014), affirmed sub nom. Kamakeeaina v. Maalo, 680 F. App’x 631
9 (9th Cir. 2017) (finding statements that plaintiff was “ready to commit suicide” were
10 sufficient to show serious medical need)).
11 Duclos alleges he told Defendant La he was going to hang himself and La responded
12 that she was going to “write [him] up for talking that freaky shit.” Compl. at 3. Duclos
13 then attempted suicide by hanging himself in a closet. Id. These allegations are sufficient
14 to plausibly state an Eighth Amendment claim against La. Iqbal, 556 U.S. at 678;
15 McGuckin, 974 F.2d at 1059; Kamakeeaina, 2014 WL 1691611, at *7.
16 Duclos also alleges that, while he was under suicide watch at RJD, he told Defendant
17 Anelle that he was going to hang himself with a string he found under his mattress. Compl.
18 at 5. While she was discussing the issue with other nurses, Duclos began choking himself
19 into unconsciousness with the string. Id. This went on for over an hour. See ECF No. 1-
20 2 at 4. According to Duclos, when he fell down while trying to tie the string to a metal box
21 on the ceiling and his smock fell off, Anelle laughed and threatened to “write him up” for
22 indecent exposure. Compl. at 5–6. Duclos claims he heard Anelle and another nurse say
23 that “the only way we’re going to activate our alarm is if he is not moving or we notice that
24 he is not breathing because our jobs are on the line.” Id. at 6. These allegations are
25 sufficient to plausibly state an Eighth Amendment claim against Anelle. Iqbal, 556 U.S.
26 at 678; McGuckin, 974 F.2d at 1059; Kamakeeaina, 2014 WL 1691611, at *7.
27 According to Duclos, after he began choking himself with the string, Defendant
28 Garcia summoned a supervisor, Sergeant Wilbon. Compl. at 6. Wilbon was able to get
1 the string away from Duclos. Id. 6. Wilbon told Garcia and Lhan “they should have
2 activated their alarms the moment they became aware that an inmate who is on suicide
3 watch has a string in his possession and is using it to choke himself.” Id. Wilbon also
4 asked why the water in Duclos’s cell had been turned off, and Garcia allegedly told Wilbon
5 “they thought [Duclos] would flood the tier.” Id. Duclos claims that at this point,
6 Defendants Anelle, Garcia, Nhan, and Williams left and did not provide him with any
7 medical care. Id. He further alleges that these Defendants did not ensure the suicide watch
8 cells in which he was detained were free of items, such as the line and the string, with
9 which Duclos could attempt suicide. Id. at 4–7. These allegations are sufficient to
10 plausibly state an Eighth Amendment claim against Defendants Anelle, Garcia, Nhan, and
11 Williams. Iqbal, 556 U.S. at 678; McGuckin, 974 F.2d at 1059; Kamakeeaina, 2014 WL
12 1691611, at *7.
13 CONCLUSION
14 In light of the foregoing, the Court:
15 (1) GRANTS Duclos’s Motion to Proceed in Forma Pauperis pursuant to 28
16 U.S.C. § 1915(a) (ECF No. 2);
17 (2) DIRECTS the Secretary of the CDCR, or her designee, to collect from
18 Duclos’s prison trust account the $350 filing fee owed in this case by garnishing monthly
19 payments from his account in an amount equal to twenty percent (20%) of the preceding
20 month’s income and forwarding those payments to the Clerk of the Court each time the
21 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS
22 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO
23 THIS ACTION;
24 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
25 on Kathleen Alison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-
26 0001, or by forwarding an electronic version to trusthelpdesk@cdcr.ca.gov;
27 (4) DIRECTS the Clerk of the Court to issue a summons as to Duclos’s
28 Complaint (ECF No. 1) upon Defendants La, Garcia, Nhan, Williams, and Anelle, and to
1 forward the summons to Duclos along with blank U.S. Marshal Form 285s for these
2 Defendants. In addition, the Clerk of the Court shall provide Duclos with a certified copy
3 of his Complaint and the summons so that he may serve defendants La, Garcia, Nhan,
4 Williams, and Anelle. Upon receipt of this “IFP Package,” Duclos must complete the USM
5 Form 285s as completely and accurately as possible; include addresses where defendants
6 La, Garcia, Nhan, Williams, and Anelle may be found and/or subject to service pursuant
7 to Civil Local Rule 4.1c.; and return the USM Form 285s to the U.S. Marshal according to
8 the instructions the Clerk of the Court provides;
9 (5) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons
10 upon Defendants La, Garcia, Nhan, Williams, and Anelle as directed by Duclos on the
11 USM Form 285s provided and to file executed waivers of personal service upon each of
12 these Defendants with the Clerk of the Court as soon as possible after their return. Should
13 any of these Defendants fail to return the U.S. Marshal’s request for waiver of personal
14 service within ninety (90) days, the U.S. Marshal shall instead file the completed Form
15 USM 285 Process Receipt and Return with the Clerk of the Court; include the date the
16 summons, Complaint, and request for waiver was mailed to that Defendant; and indicate
17 why service upon that party remains unexecuted. All costs of U.S. Marshal service will be
18 advanced by the United States; however, if a Defendant located within the United States
19 fails, without good cause, to sign and return the waiver requested by the Marshal on
20 Duclos’s behalf, the Court will impose upon that Defendant any expenses later incurred in
21 making personal service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3), (d)(2);
22 (6) ORDERS Defendants La, Garcia, Nhan, Williams, and Anelle, once served,
23 to reply to Duclos’s Complaint, and any subsequent pleading he may file in this matter in
24 which they are named as parties, within the time provided by the applicable provisions of
25 Federal Rules of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. § 1997e(g)(2) (while
26 Defendants may occasionally be permitted to “waive the right to reply to any action
27 brought by a prisoner confined in any jail, prison, or other correctional facility under
28 section 1983,” once the Court has conducted its sua sponte screening pursuant to 28 U.S.C.
1 || §§ 1915¢e)(2) and 1915A(b) and thus made a preliminary determination based on the face
2 || of the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,”
3 || Defendants are required to respond); and
4 (7) ORDERS Duclos, after service has been effected by the U.S. Marshal, to
5 || serve upon Defendants La, Garcia, Nhan, Williams, and Anelle—or, if appearance has been
6 || entered by counsel, upon Defendants’ counsel—a copy of every further pleading, motion,
7 || or other document submitted for the Court’s consideration pursuant to Federal Rule of Civil
8 Procedure 5(b). Duclos must include with every original document he seeks to file with
9 || the Clerk of the Court a certificate stating the manner in which a true and correct copy of
10 || that document was served on Defendants or their counsel and the date of that service. See
11 Cal-CivLR 5.2.
12 IT IS SO ORDERED.
13 ||Dated: July 28, 2022 sue tt f Le
14 on. Janis L. Sammartino
15 United States District Judge
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