(PC) Wilson v. Meritt ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WAYNE WILSON, Case No.: 1:22-cv-00455-BAK (GSA) (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 LURA MERRITT, et al., (Doc. 10) 15 Defendants. ORDER DIRECTING PAYMENT OF INMATE FILING FEE BY CALIFORNIA 16 DEPARTMENT OF CORRECTIONS 17 18 Plaintiff David Wayne Wilson is appearing pro se in this civil rights action brought 19 pursuant to 42 U.S.C. § 1983. 20 I. BACKGROUND 21 On April 18, 2022, Plaintiff filed this action in the United States District Court for the 22 Northern District of California. (Doc. 1.) The action was transferred to this Court on April 19, 23 2022. (Docs. 5, 6.) 24 On April 26, 2022, Plaintiff was ordered to submit an application to proceed in forma 25 pauperis (IFP) or to pay the filing fee. (Doc. 9.) He was given thirty days within which to file the 26 IFP application or to pay the filing fee. (Id.) 27 On May 2, 2022, Plaintiff filed his application to proceed IFP. (Doc. 10.) 1 II. DISCUSSION 2 Plaintiff is subject to 28 U.S.C. § 1915, which provides that “[i]n no event shall a prisoner 3 bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while 4 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 5 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 6 which relief may be granted, unless the prisoner is under imminent danger of serious physical 7 injury.” 28 U.S.C. § 1915(g). 8 Because Plaintiff has accrued three “strikes” under section 1915(g),1 Plaintiff must show 9 that he is under imminent danger of serious physical injury at the time of the filing of his 10 complaint in order to bring this action. Andrews v. Cervantes, 493 F.3d 1047, 1053-1056 (9th 11 Cir.2007). “[T]he availability of the [imminent danger] exception turns on the conditions a 12 prisoner faced at the time the complaint was filed, not at some earlier or later time.” Id. at 1053. 13 While the injury requirement is merely procedural rather than a merits-based review of the 14 claims, the allegations of imminent danger must still be plausible. Id. at 1055. 15 Plaintiff has made that required showing and the Court will grant his motion. 16 A. Plaintiff’s Complaint 17 Plaintiff’s complaint2 asserts a claim of deliberate indifference to medical needs in 18 violation of the Eighth Amendment. Plaintiff contends medical professionals at the California 19 Substance Abuse Treatment Facility (SATF) in Corcoran refuse his requests for medical 20 treatment, including failing to comply with “Guidelines for Cocci Valley Fever”3 in light of 21 1 The Court takes judicial notice of the following United States District Court Cases: (1) Wilson v. Tilton, Case No. 2:06-cv-01031-LKK-PAN (E.D. Cal.) (dismissed September 12, 2006, for failure to state a claim); (2) 22 Wilson v. Schwartz, Case No. 2:05-cv-01649-GEB-CMK (E.D. Cal.) (dismissed October 31, 2006, for failure to state a claim); (3) Wilson v. Dovey, Case No. 2:06-cv-01032-FD-EFB (E.D. Cal.) (dismissed March 8, 2007, for failure to 23 state a claim); and (4) Wilson v. Veal, Case No. 2:06-cv-00067-FCD-KJM (E.D. Cal.) (dismissed June 4, 2007, for failure to state a claim). See Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015). 24 2 Plaintiff used a form complaint initially (Doc. 1 at 1-3) and supplemented the form with a document entitled 25 “Complaint for Injunctive and Declaratory Relief for Imminent Danger for Inadequate Medical Health No Doctor B- Facility Clinic Where Nurse Practitioner Misdiagnose and Valley Fever Prison Retains African Americans for 26 Morbidity and Death and No Mitigation of Inhalation Cocci Fungus Spores” (Doc. 1 at 4). 27 3 “Valley fever is an infection caused by the fungus Coccidioides. The scientific name for Valley fever is ‘coccidioidomycosis,’ and it’s also sometimes called ‘San Joaquin Valley fever’ or ‘desert rheumatism.’ The term 1 applicable high-risk factors due to Plaintiff’s race and medical status. (Doc. 1 at 2, 13 [first cause 2 of action].) Plaintiff also asserts a claim of retaliation. (Doc. 1 at 14 [second cause of action].) 3 Next, Plaintiff alleges a violation of his constitutional rights “for Cocci/Valley Fever retention,” 4 arguing he should be excluded from residing at the institution as it is in a “Cocci 2” area. (Doc. 1 5 at 3, 14 [third cause of action].) Plaintiff further contends he was denied equal protection where 6 named defendants intentionally discriminated against “him & others similarly situated based on 7 increased risk severe cocci disease that includes ethnicity of African Americans as plaintiff to be 8 excluded from race-based housing [] distinguishable under Plata Courts policy of membership.” 9 (Doc. 1 at 14-15 [fourth cause of action].) Plaintiff also asserts equal protection claim under state 10 law and a deliberate indifference claim against “supervisory defendants.” (Doc. 1 at 15 [fifth & 11 sixth causes of action].) 12 In his prayer for relief, Plaintiff lists a series of twenty varied requests, including five that 13 specifically address Plaintiff’s high-risk status for contracting Valley Fever and actions that 14 should be taken to address Valley Fever concerns at SATF or Plaintiff’s exposure to Valley 15 Fever. (Doc. 1 at 16-18.) In a verification signed and dated April 13, 2022, Plaintiff states, in 16 relevant part: “I am the Plaintiff for Complaint for Injunctive and Declaratory Relief for 17 Imminent Danger for Inadequate Medical Health No Doctor B-Facility Clinic where Nurse 18 Practitioner Misdiagnose and Valley Fever Prison Retains African Americans for Morbidity and 19 Death and No Mitigation of Inhalation Cocci Fungus Spores ….” (Doc. 1 at 18.) 20 B. The Imminent Danger Exception 21 Liberally construed, Plaintiff plausibly alleges in his complaint that he is in imminent 22 danger of serious injury. Plaintiff contends he is at high-risk to contract Valley Fever and that 23 medical professionals at the facility are ignoring policies and procedures in place that would 24 preclude Plaintiff from living at his current facility due to the risk posed to him by Valley Fever. 25 At this stage of the proceedings, where the Court is considering Plaintiff’s application to 26 proceed IFP, the merits of Plaintiff’s claims are not considered. Rather, as the Ninth Circuit Court 27 developing severe forms of the infection …. [P]eople who are at higher risk for severe Valley fever should try to 1 of Appeals held, the Court considers whether Plaintiff has plausibly demonstrated the existence of 2 an imminent danger of serious physical injury. He has done so. See Andrews v. Cervantes, 493 3 F.3d at 1055. 4 Because Plaintiff has made the showing required by § 1915(a), his request to proceed in 5 forma pauperis will be granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for 6 this action. 28 U.S.C. § 1915(b)(1). Plaintiff is obligated to make monthly payments in the 7 amount of twenty percent (20%) of the preceding month’s income credited to Plaintiff’s trust 8 account. The California Department of Corrections is required to send to the Clerk of the Court 9 payments from Plaintiff’s trust account each time the amount in the account exceeds $10.00, until 10 the statutory filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 11 The Court notes Plaintiff’s complaint will be screened in due course. See 28 U.S.C. § 12 1915A(a). 13 III. CONCLUSION AND ORDER 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s application to proceed in forma pauperis (Doc. 10) is GRANTED; 16 2. The Director of the California Department of Corrections or his or her designee 17 shall collect payments from Plaintiff’s prison trust account in an amount equal to 18 twenty percent (20%) of the preceding month’s income credited to the prisoner’s 19 trust account and shall forward those payments to the Clerk of the Court each 20 time the amount in the account exceeds $10.00, in accordance with 28 U.S.C. § 21 1915(b)(2), until a total of $350.00 has been collected and forwarded to the Clerk 22 of the Court. The payments shall be clearly identified by the name and number 23 assigned to this action; 24 3. The Clerk of the Court is directed to serve a copy of this order and a copy of 25 Plaintiff’s in forma pauperis application on the Director of the California Department 26 of Corrections, via the Court’s electronic case filing system (CM/ECF); and 27 // 1 4. The Clerk of the Court is directed to serve a copy of this order on the Financial 2 Department, U.S. District Court, Eastern District of California. 3 4 IT IS SO ORDERED. 5 6 Dated: May 4, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27