Spellman v. Peyman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY E. SPELLMAN, Case No.: 3:22-cv-01710-RBM-LR CDCR #G-23848, 12 ORDER: Plaintiff, 13 v. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS PEYMAN SHAKIBA, Doctor; STEVEN 15 [Doc. 2]; AND G. FARMER, Podiatrist; D. CALDERON, 16 Senior Registered Nurse 2; KIMBERLY (2) SCREENING COMPLAINT KAESTNER, Registered Nurse; M. 17 PURSUANT TO 28 U.S.C. UNSON, Registered Nurse Supervisor, §§ 1915(e)(2)(B) & 1915A(b) 18 Defendants. 19 [Doc. 2] 20 Timothy E. Spellman (“Spellman” or “Plaintiff”), currently incarcerated at 21 California Health Care Facility (“CHCF”) located in Stockton, California, and proceeding 22 pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, together with a 23 motion to proceed in forma pauperis (“IFP”). See Compl., ECF No. 1; IFP, ECF No. 2. He 24 alleges Defendants violated his Eighth Amendment rights by failing to provide adequate 25 medical care while he was incarcerated at R.J. Donovan State Prison (“RJD”). Compl., 26 ECF No 1. 27 / / / 28 1 I. Motion to Proceed IFP 2 All parties instituting any civil action in a district court of the United States, except 3 an application for writ of habeas corpus, must pay a filing fee of $402.1 See 28 U.S.C. 4 § 1914(a). The action may proceed despite a plaintiff’s failure to prepay the entire fee only 5 if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. 6 Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner who is granted leave to proceed 7 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 8 Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), 9 and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), 10 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 11 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 12 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 13 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 14 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 15 trust account statement, the Court assesses an initial payment of 20% of (a) the average 16 monthly deposits in the account for the past six months, or (b) the average monthly balance 17 in the account for the past six months, whichever is greater, unless the prisoner has no 18 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 19 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 20 month’s income, in any month in which his account exceeds $10, and forwards those 21 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 22 577 U.S. at 85. 23 In support of his IFP Motion, Spellman has submitted a prison certificate and a 24 25 1 In civil actions except for applications for a writ of habeas corpus, civil litigants bringing 26 suit must pay the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C. 27 § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The $52 administrative fee does not apply to persons granted leave to 28 1 certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. 2 Cal. Civ. L.R. 3.2. See ECF No. 2 at 4‒6; Andrews, 398 F.3d at 1119. These documents 3 show that Spellman carried an average monthly balance of $0.00, had average monthly 4 deposits to his trust account for the six months preceding the filing of this action of $0.03, 5 and an available balance of $0.00 at the time of filing. See ECF No. 2 at 4–6. 6 Therefore, the Court GRANTS Spellman’s Motion to Proceed IFP (ECF No. 2) and 7 assesses no initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). The Court further 8 directs the Secretary for the CDCR, or their designee, to collect this initial filing fee only 9 if sufficient funds are available in Plaintiff’s account at the time this Order is executed. See 10 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from 11 bringing a civil action or appealing a civil action or criminal judgment for the reason that 12 the prisoner has no assets and no means by which to pay the initial partial filing fee”); 13 Bruce, 577 U.S. at 85. The remaining balance of the total fee owed in this case must be 14 collected by the agency having custody of the prisoner and forwarded to the Clerk of the 15 Court pursuant to 28 U.S.C. § 1915(b)(2). 16 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 17 A. Standard of Review for Screening 18 Because Spellman is a prisoner, his Complaint requires a pre-answer screening 19 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court 20 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 21 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 22 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 23 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 24 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous 25 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 26 903, 920 n.1 (9th Cir. 2014) (citation omitted). 27 “The standard for determining whether Spellman has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 2 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 3 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 6 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 9 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 10 Iqbal, 556 U.S. at 678. The “mere possibility of misconduct” or “unadorned the defendant- 11 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 12 see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 13 B. 42 U.S.C. § 1983 14 “Section 1983 creates a private right of action against individuals who, acting under 15 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 16 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 17 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 18 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations 19 omitted). “To establish § 1983 liability, Spellman must show both (1) deprivation of a right 20 secured by the Constitution and laws of the United States, and (2) that the deprivation was 21 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 22 F.3d 1128, 1138 (9th Cir. 2012). 23 C. Plaintiff’s Factual Allegations 24 Spellman, who is diabetic, alleges that in January of 2020, Defendant Steven Farmer, 25 MD, a podiatrist, performed a partial nail removal on his right big toe. Compl., ECF No. 1 26 at 5. About a week after the procedure, Spellman sought medical attention for “[severe] 27 pain, swelling, and drainage” of the toe and was seen by Defendants Shakiba and Kaestner; 28 he was prescribed antibiotics and daily betadine soaks. Id. 1 From late February until mid-April of 2020, Spellman saw Kaestner several times 2 for the infection that had developed in his right toe following the nail removal. Id. at 6–7. 3 Spellman was referred back to podiatry. Id. According to Spellman, during a March 16, 4 2020 examination by Kaestner, she asked Shakiba to examine Spellman’s toe, but he 5 refused to do so. Id. at 6. On another occasion, Spellman claims Kaestner told him Shakiba 6 suspected he was tampering with his wound. Id. at 6–7. 7 In mid-April of 2020, Spellman again saw Kaestner, “pleaded for relief” and 8 expressed his fear his toe would need to be amputated. Id. at 7. Spellman claims Kaestner 9 “printed out some documents relating to infections and dismissed the Plaintiff.” Id. Later 10 that month, Farmer examined Spellman’s toe and, according to Spellman, was 11 “bewildered” at its condition; he gave Spellman some betadine swabs and bandages, and 12 told him he hoped his toe got better. Id. 13 About a month later, Spellman made a medical request and was seen by Shakiba, 14 who, according to Spellman, “ordered the plaintiff back to see the defendant podiatrist 15 Farmer to remove the entire toenail from the plaintiff’s right great toe”; the procedure was 16 performed by Farmer on June 2, 2020. Id. at 8. He was next examined by Shakiba on June 17 12, 2020, when Spellman alleges Shakiba refused to provide any pain relief medication. 18 Id. 19 By the end of June 2020, Spellman claims he was experiencing mental health issues 20 because he was “becoming overwhelmed b[y] the extreme pain” and his fear that his toe 21 would be amputated. Id. at 8–9. He alleges Shakiba had “refused to examine [him] on 22 several occasions” by this time and that early July 2020, Kaestner told him not to submit 23 any more requests for medical treatment of his toe. Id. at 9. 24 In mid-July of 2020, Spellman was examined by another doctor at the prison who 25 ordered a course of antibiotics to address the ongoing infection in Spellman’s toe. Id. About 26 a week later, according to Spellman, the nurse who performed his daily foot soak was 27 concerned about the appearance of Spellman’s toe and asked Shakiba to examine Spellman. 28 Id. at 10. Spellman claims Shakiba again refused to examine him. Id. 1 Spellman alleges that from late July to late August of 2020, he requested medical 2 attention and requested pain medication five times. Id. at 10–11. Kaestner examined him 3 on these occasions, but Shakiba refused to do. Id. According to Spellman, Shakiba also 4 told him he had discontinued the pain medication Spellman had previously been prescribed 5 for diabetic foot pain and refused to prescribe any other pain medication. Id. at 11; ECF 6 No. 1-4 at 20. 7 On August 21, 2020, Spellman claims Kaestner examined his toe and asked Shakiba 8 to examine Spellman; he refused. Id. Spellman alleges Kaestner told him “Dr. Shakiba said 9 that he has had enough of your toe.” Id. Spellman told Kaestner he was in immediate pain 10 and refused to leave. Id. at 11–12. In order to avoid disciplinary action, Spellman invoked 11 a “man down” emergency call. Id. at 12. When the emergency team arrived and began to 12 transport Spellman to the triage area, however, Spellman claims Shakiba came out of his 13 office, told the emergency team to leave, and told Spellman “[h]e should get used to the 14 pain.” Id. 15 When Spellman returned for medical services on August 24, 2020, Shakiba again 16 refused to see him despite a request by a nurse who had been assisting with Spellman’s 17 daily foot soak. Id. at 13. The nurse reported Shakiba’s actions to her supervisor, Defendant 18 Unson, who asked Spellman if he wanted to harm himself or others; when Spellman said 19 no, Unson allegedly left the room and refused to take any action against Shakiba because 20 he was “difficult.” Id. at 13–14. Shakiba examined Spellman at the end of August and 21 discussed amputation of the toe as an option. Id. at 14. He also told Spellman he suspected 22 Spellman was making the toe worse on purpose. Id. 23 In early September of 2020, Spellman saw a new doctor who, upon examining 24 Spellman’s toe, ordered a consultation with a wound care specialist, antibiotics, an X-ray, 25 and Tylenol 3 for pain. Id. at 15. The next day, Shakiba canceled the Tylenol prescription. 26 Id. The X-ray showed “focal osteopenia,” which is defined as “bones [which] are weaker 27 than normal” and which can be an early sign of permanent bone loss. See 28 https://www.webmd.com/osteoporosis/guide/osteopenia-early-signs-of-bone-loss. 1 According to Spellman, Shakiba continued to express his belief that Spellman was “faking” 2 his pain and injury but nevertheless had him admitted to an off-site hospital for evaluation 3 and treatment. Id. at 16. When Spellman returned to prison from Alvarado Hospital, 4 Spellman alleges Unson refused to provide him with follow-up treatment information and 5 did not change the bandage on his toe. Id. 6 Spellman alleges that in late September of 2020, he was examined by Kaestner who 7 attempted to get Shakiba to examine Spellman’s toe; again, Shakiba refused to do so. Id. 8 at 17. According to Spellman, Shakiba told Kaestner to tell Spellman to “stop submitting 9 medical forms . . . about his toe.” Id. Spellman claims alleges he asked Defendant Calderon 10 for help, but she walked away from him as he was explaining Shakiba’s failure to treat him. 11 Id. Spellman alleges Calderon subsequently told him he was “manipulating his wound.” 12 Id. at 26. 13 Spellman claims Kaestner told him not to submit any more medical requests about 14 his toe again in mid-October 2020. Id. at 18. In late October 2020, an MRI showed 15 Spellman likely had osteomyelitis, an infection of the bone, in his toe. Id.; ECF No. 1-6 at 16 15; see also https://www.mayoclinic.org/diseases-conditions/osteomyelitis/symptoms- 17 causes/syc-20375913. At this point, Plaintiff claims Shakiba told him “Now I believe you,” 18 but refused to provide Spellman with any pain medication until Spellman completed a 19 course of antibiotics despite Spellman telling Shakiba his pain level ranged from six to nine 20 out of ten on a daily basis. Id. at 18–19. Spellman received wound care and antibiotics for 21 the remainder of 2020. Id. at 19–20. 22 In early May of 2021, Shakiba terminated Spellman’s wound care and told Spellman 23 amputation of the toe was the best option for treatment. Id. at 10. Spellman continued to 24 request medical treatment and pain medication at RJD until late September of 2021 when 25 he was transferred to the California Health Care Facility (“CHCF”). Id. at 20–21. At CHCF, 26 Spellman was immediately transferred to a higher level of care and received six weeks of 27 intravenous antibiotics. Id. at 21. Amputation of Spellman’s toe was again recommended 28 as a solution. Id at 22. 1 D. Discussion 2 The Eighth Amendment requires that inmates have “ready access to adequate 3 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate 4 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle 5 v. Gamble, 429 U.S. 97, 104 (1976). “A prison official acts with ‘deliberate indifference . 6 . . only if the [prison official] knows of and disregards an excessive risk to inmate health 7 and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. 8 Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by 9 Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under this standard, 10 the prison official must not only ‘be aware of facts from which the inference could be 11 drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 12 inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 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,” which causes harm is sufficient 26 to establish deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 27 / / / 28 / / / 1 1. Plaintiff States an Eighth Amendment Claim Against Defendants Shakiba 2 and Farmer 3 Spellman has stated an Eighth Amendment claim against Defendants Shakiba and 4 Farmer. “Deliberate indifference ‘may appear when prison officials deny, delay or 5 intentionally interfere with medical treatment, or it may be shown in the way in which 6 prison physicians provide medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th 7 Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 8 According to Spellman, Shakiba refused to examine and treat his infected toe on several 9 occasions from January of 2020 through August of 2021, told him to stop requesting 10 medical attention for his toe, and told him he believed Spellman was faking his pain and 11 worsening the wound on purpose. See Compl., ECF No. 1 at 5–6, 9 12, 17–18. An October 12 202 MRI, however, revealed that the removal of Spellman’s toenail had developed into a 13 bone infection in his toe. Id. at 18. These facts plausibly allege Shakiba “kn[e]w of and 14 disregard[ed] an excessive risk to [Spellman’s] health and safety.’” Toguchi, 391 F.3d at 15 1057. 16 Spellman’s allegations regarding Shakiba’s refusal to treat his pain also plausibly 17 allege an Eighth Amendment violation. “A medical need is serious if failure to treat it will 18 result in significant injury or the unnecessary and wanton infliction of pain.” Peralta v. 19 Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 20 (9th Cir. 2006) (internal quotation marks and citations omitted). Spellman claims Shakiba 21 discontinued the pain medication Spellman had previously been prescribed for diabetic 22 foot pain, canceled a prescription for pain medication written by another doctor, and 23 refused to prescribe any other pain medication even though Spellman told Shakiba he was 24 experiencing extreme pain from the infection, telling Spellman “[h]e should get used to the 25 pain.” Id. at 8, 10–12, 15, 18–19. Shakiba’s disregard for Spellman’s pain, coupled with 26 his refusal to examine Spellman on multiple occasions “suggest[] a failure to treat that 27 resulted in unnecessary, wanton infliction of pain and aggravation of other serious 28 ailments.” See Wilhelm v. Aung, No. 2:20-cv-1682-WBS-DMC-P, 2021 WL 877011, at *3 1 (E.D. Cal. March 9, 2021) (finding allegations prison doctor failed to prescribe pain 2 medication for foot pain and failed to provide appropriate treatment were sufficient to 3 survive screening). 4 Moreover, Spellman alleges that when he was examined by a different doctor in 5 September of 2020, that doctor ordered a consultation with a wound care specialist, 6 antibiotics, an X-ray, and Tylenol 3 for pain. Compl., ECF No. 1 at 15. These allegations 7 also give rise to a reasonable inference that Spellman had a significant medical condition 8 that required attention and that he was suffering from significant pain which was going 9 untreated by Shakiba. See Davis v. Sutley, No. EDCV 07-1415-CBM (RNB), 2008 WL 10 1817262, at *4 (C.D. Cal. Apr. 17, 2008) (finding the extraction of plaintiff’s tooth by a 11 dentist after defendant refused to provide dental treatment and pain medication raised a 12 reasonable inference plaintiff suffered from a “severe medical condition that did require 13 treatment at the time [the] defendant . . . refused plaintiff dental treatment and pain 14 medication”). Shakiba’s alleged cancellation of the pain medication prescribed by another 15 doctor also suggests he was “aware of facts from which the inference could be drawn that 16 a substantial risk of serious harm exists,” and that he actually drew that inference. Toguchi, 17 391 F.3d at 1057. Taken together, Spellman’s claims regarding Shakiba’s conduct are 18 sufficient to plausibly allege an Eighth Amendment violation. Iqbal, 556 U.S. at 678. 19 Further, Spellman’s claim that when Farmer examined his infected toe after the first 20 procedure and he did nothing more than tell Spellman that he hoped his toe got better also 21 plausibly allege a failure to provide appropriate medical care sufficient to state an Eighth 22 Amendment claim at the screening stage. See Watison, 668 F.3d at 1112; Wilhelm, 680 23 F.3d at 1123. By the time Farmer examined Spellman, he had undergone three months of 24 antibiotics and betadine soaks with no improvement. Compl., ECF No. 1 at 5–7. Yet 25 Farmer did not order any further tests, treatment, or medication to address Spellman’s 26 ongoing pain and infection. Spellman eventually developed a bone infection as a result of 27 the lack of care. Id. at 18. These allegations are sufficient to plausibly allege that Farmer 28 “[knew] of and disregard[ed] an excessive risk to [Spellman’s] health and safety.” Toguchi, 1 391 F.3d at 1057. 2 Accordingly, the Court concludes Spellman’s allegations against Shakiba and 3 Farmer are sufficient to survive the “low threshold” set for initial preliminary screening as 4 required by 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)(1), and that Spellman 5 has plausibly alleged an Eighth Amendment claim against Shakiba and Farmer. Watison, 6 668 F.3d at 1112; Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678. 7 2. Plaintiff Fails to State an Eighth Amendment Claim Against Defendants 8 Kaestner, Calderon, and Unson 9 Spellman’s allegations against Defendants Kaestner, Calderon, and Unson do not 10 plausibly allege an Eighth Amendment violation, however, because they are insufficient to 11 show those Defendants acted “in conscious disregard of an excessive risk to the plaintiff’s 12 health.” Edmo, 935 F.3d at 786; Jett, 439 F.3d at 1096. Spellman’s allegations do not show 13 Kaestner failed to treat him. She examined him many times between January 2020 and 14 May of 2021 and asked Shakiba to examine him on several occasions but he refused. 15 Compl., ECF No. 1 at 5–21. And while Spellman alleges Kaestner told him to stop 16 submitting medical requests for his toe, Kaestner was simply repeating what Shakiba had 17 told her to communicate to Spellman. Id. at 11, 17. Spellman has not alleged sufficient 18 facts showing Kaestner disregarded a serious risk to Spellman’s health. Toguchi, 391 F.3d 19 at 1057. 20 The allegations against Defendants Calderon and Unson are also insufficient to 21 plausibly allege they were “aware of facts from which the inference could be drawn that a 22 substantial risk of serious harm exists,” and that [they] actually drew that inference. 23 Toguchi, 391 F.3d at 1057. Spellman claims Calderon walked away from Spellman as he 24 was trying to explain Shakiba’s failure to treat him and told him he was manipulating his 25 wound. Compl., ECF No. 1 at 26. He claims that when Unson was told by a nurse that 26 Shakiba was refusing to examine Spellman, Unson simply asked Spellman if he wanted to 27 harm himself or others, and when Spellman said he did not, Unson refused to take any 28 action against Shakiba. Id. at 13–14. On another occasion, Spellman alleges Unson refused 1 to provide information about follow-up treatment after his visit to Alvarado Hospital and 2 did not change the bandage on his toe. Id. at 16. These allegations do not rise to the level 3 of an Eighth Amendment violation because they do not show Calderon and Unson knew 4 enough about Spellman’s medical condition to conclude there was a serious risk to 5 Spellman’s health and safety and disregarded that risk. Toguchi, 391 F.3d at 1057; Norvell, 6 2020 WL 4464454, at *4 (stating that “[i]nadvertent failures to provide adequate medical 7 care, mere negligence or medical malpractice, delays in providing care (without more), and 8 differences of opinion over what medical treatment or course of care is proper, are all 9 insufficient to constitute an Eighth Amendment violation”). Spellman has not alleged 10 sufficient specific facts showing what actions Calderon or Unson took or failed to take 11 which plausibly allege they were “aware of facts from which the inference could be drawn 12 that a substantial risk of serious harm exists,” and that they actually drew the inference.’” 13 Toguchi, 391 F.3d at 1057. 14 III. Conclusion and Order 15 Based on the foregoing, the Court: 16 1. GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2); 17 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 18 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly 19 payments from the account in an amount equal to twenty percent (20%) of the preceding 20 month’s income and forward payments to the Clerk of the Court each time the amount in 21 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 22 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 23 HIS ACTION; 24 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 25 on Kathleen Allison, Secretary, California Department of Corrections and Rehabilitation, 26 P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by forwarding 27 an electronic copy to trusthelpdesk@cdcr.ca.gov; 28 4. DISMISSES Plaintiff’s claims against Defendants D. Calderon, Kimberly 1 Kaestner, and M. Unson for failing to state a claim upon which relief may be granted 2 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b); 3 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 4 1) upon Defendants DR. PEYMAN SHAKIBA and DR. STEVEN G. FARMER and 5 forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these 6 Defendants. In addition, the Clerk will provide Plaintiff with certified copies of this Order, 7 certified copies of his Complaint (ECF No. 1), and the summons so that he may serve the 8 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form 9 285s as completely and accurately as possible, include an address where each Defendant 10 may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return them 11 to the United States Marshal according to the instructions the Clerk provides in the letter 12 accompanying his IFP package; 13 6. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 14 upon Defendants DR. PEYMAN SHAKIBA and DR. STEVEN G. FARMER upon receipt 15 and as directed by Plaintiff on the completed USM Form 285s, and to promptly file proof 16 of service, or proof of any attempt at service unable to be executed, with the Clerk of Court. 17 See S.D. Cal. CivLR 5.2. All costs of that service will be advanced by the United States. 18 See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); 19 7. ORDERS Defendants DR. PEYMAN SHAKIBA and DR. STEVEN G. 20 FARMER, once they have been served, to reply to Plaintiff’s Complaint within the time 21 provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 22 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right 23 to reply to any action brought by a prisoner confined in any jail, prison, or other correctional 24 facility under section 1983,” once the Court has conducted its sua sponte screening 25 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary 26 determination based on the face on the pleading alone that Plaintiff has a “reasonable 27 opportunity to prevail on the merits,” defendant is required to respond); and 28 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 1 ||serve upon Defendants DR. PEYMAN SHAKIBA and DR. STEVEN G. FARMER, or if 2 || appearance has been entered by counsel, upon Defendants’ counsel, a copy of every further 3 || pleading, motion, or other document submitted for the Court’s consideration pursuant to 4 ||Fed. R. Civ. P. 5(b). Plaintiff must include with every original document he seeks to file 5 || with the Clerk of the Court, a certificate stating the manner in which a true and correct 6 || copy of that document has been served on Defendants or their counsel, and the date of that 7 || service. See S.D. Cal. CivLR 5.2. Any document received by the Court which has not been 8 || properly filed with the Clerk or which fails to include a Certificate of Service upon the 9 || Defendants, or their counsel, may be disregarded. 10 IT IS SO ORDERED. 11 |} DATED: December 19, 2022 aah Borman, MAoittagys Hon. uth Bermude ontenegro United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 me ee