1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BILLY DRIVER, JR., No. 2:20-cv-1665 JAM KJN P 11 Plaintiff, 12 v. ORDER 13 KERN COUNTY SUPERIOR COURT, et al., 14 Defendants. 15
16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 15, 2021, the magistrate judge recommended that defendants’ motion to revoke 21 plaintiff’s in forma pauperis status be denied on the grounds that plaintiff met the imminent 22 danger exception to 28 U.S.C. § 1915(g). (ECF No. 63.) Plaintiff did not file objections. The 23 undersigned herein addresses defendants’ objections to the July 15, 2021 findings and 24 recommendations. (ECF No. 69.) 25 This action proceeds on plaintiff’s amended complaint filed September 28, 2020 against 26 defendants Bansal, Rauf and Maya. (ECF No. 13.) Plaintiff alleges that defendants violated the 27 Eighth Amendment when they denied plaintiff’s request to discontinue his prescription for the 28 anti-psychotic medication Invega after plaintiff told defendants that he was not psychotic and that 1 the medication caused plaintiff to suffer harmful side effects. (ECF No. 13.) 2 The magistrate judge found that plaintiff met the imminent danger exception to 28 U.S.C. 3 § 1915(g) based on plaintiff’s allegations in the amended complaint that the anti-psychotic 4 medication caused him to suffer harmful side effects including, in relevant part, borderline 5 diabetes, chest pains and heart palpitations.1 (ECF No. 63 at 7-8.) In support of this finding, the 6 magistrate judge cited Bradford v. Marchak, 667 Fed.Appx. 616, *617 (9th Cir. 2016). (Id. at 7.) 7 In Bradford, the Ninth Circuit reversed a district court judgment denying the plaintiff’s 8 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). The Ninth Circuit 9 found that, “Bradford plausibly alleged ‘imminent danger of serious physical injury’ given his 10 allegations of chest pain, dizziness, blurred vision and headaches from ongoing involuntary 11 psychotropic medication.” 667 Fed.Appx. at *617. 12 In the objections, defendants argue that the magistrate judge erred in finding that plaintiff 13 met the imminent danger exception based on allegations in the amended complaint. Defendants 14 suggest that the magistrate judge should have only considered the arguments raised in plaintiff’s 15 opposition, which did not demonstrate the imminent danger exception. 16 As discussed in the findings and recommendations, in his opposition, plaintiff argued that 17 he met the imminent danger exception based on assaults by guards. (ECF No. 63 at 3.) The 18 magistrate judge found that plaintiff’s claim regarding assaults by guards did not meet the 19 imminent danger exception because it was unrelated to the claims on which this action proceeds. 20 (Id. at 4.) 21 The undersigned finds that the magistrate judge did not err in considering the allegations 22 in the amended complaint in determining whether plaintiff met the imminent danger exception. 23 Defendants also argue that plaintiff’s allegations regarding imminent danger are 24 implausible. Defendants argue that plaintiff did not describe consistent side effects in his 25 complaints to prison officials in the grievances attached to the amended complaint. Defendants 26
27 1 The magistrate judge found that the side effects of halitosis and baldness do not amount to serious physical injury. The magistrate judge found that it was unclear whether gynecomastia is a 28 serious physical injury. 1 argue that the only side effects plaintiff complained of in his related grievances were baldness, 2 erectile dysfunction, weight gain and gynecomastia. 3 In the findings and recommendations, the magistrate judge cited a Health Care Services 4 Request Form dated August 17, 2020 (attached to the amended complaint) in which plaintiff 5 asked defendant Rauf to discontinue Invega because it caused plaintiff to suffer heart palpitations 6 and borderline diabetes. (ECF No. 13 at 5; ECF No. 63 at 7.) The undersigned notes another 7 Health Care Services Request Form attached to the amended complaint dated August 14, 2020 in 8 which plaintiff complained of chest pain, heart palpitations and borderline diabetes. (ECF No. 13 9 at 14.) Plaintiff attached another Health Care Services Request Form to the amended complaint 10 dated August 18, 2020 complaining of heart palpitations, borderline diabetes and gynecomastia. 11 (Id. at 16.) In another Health Care Services Form attached to the amended complaint dated July 12 30, 2020, plaintiff complains of heart palpitations and chest pain. (Id. at 20.) 13 Based on the Health Care Services Request Forms discussed above, the undersigned is not 14 persuaded by defendants’ argument that plaintiff’s failure to complain about consistent side 15 effects in his grievances renders his claims of imminent injury implausible. 16 Defendants also argue that plaintiff’s allegations of imminent harm are implausible given 17 the legal requirements that had to be met before he could be involuntarily medicated. The 18 magistrate judge found that the order for plaintiff to be involuntarily medicated did not 19 necessarily undermine plaintiff’s claim that Invega caused harmful side effects. (ECF No. 63 at 20 8.) 21 In the objections, defendants cite California Penal Code section 2602(c)(8) requiring, as a 22 basis for involuntary medication orders, that an administrative law judge determine that the 23 medication is in the inmate’s medical best interest. Whether an involuntary medication order 24 pursuant to California Penal Code section 2602(c)(8) precludes a finding of imminent physical 25 injury based on the side effects of the medication prescribed is an issue that may be developed at 26 a later stage of this litigation. The undersigned also observes that the plaintiff in Bradford, supra, 27 appears to have been subject to an involuntary medication order and the Ninth Circuit found that 28 1 he met the imminent danger exception.2 2 Defendants also argue that the magistrate judge failed to consider plaintiff’s allegations in 3 Driver v. Gibson, 2: 20-cv-0642 KJM DMC P, which is premised on similar claims.3 In 20-cv- 4 642, plaintiff alleges that in February 2020, an administrative law judge ordered that plaintiff be 5 involuntarily medicated with Invega.4 (See 20-cv-642 at ECF No. 30 at 3.) Defendants argue 6 that the timeline in 20-cv-642 indicates that plaintiff was taking the same psychotropic 7 medication months before his interactions with defendants in the instant action. Defendants argue 8 that these circumstances undercut any claim of imminent harm with respect to the treatment 9 challenged in the instant action. 10 As observed by the magistrate judge in the findings and recommendations, to meet his 11 burden under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious 12 physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical 13 injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003); see also Andrews v. Cervantes, 14 493 F.3d 1047, 1055-57 (9th Cir.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BILLY DRIVER, JR., No. 2:20-cv-1665 JAM KJN P 11 Plaintiff, 12 v. ORDER 13 KERN COUNTY SUPERIOR COURT, et al., 14 Defendants. 15
16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 15, 2021, the magistrate judge recommended that defendants’ motion to revoke 21 plaintiff’s in forma pauperis status be denied on the grounds that plaintiff met the imminent 22 danger exception to 28 U.S.C. § 1915(g). (ECF No. 63.) Plaintiff did not file objections. The 23 undersigned herein addresses defendants’ objections to the July 15, 2021 findings and 24 recommendations. (ECF No. 69.) 25 This action proceeds on plaintiff’s amended complaint filed September 28, 2020 against 26 defendants Bansal, Rauf and Maya. (ECF No. 13.) Plaintiff alleges that defendants violated the 27 Eighth Amendment when they denied plaintiff’s request to discontinue his prescription for the 28 anti-psychotic medication Invega after plaintiff told defendants that he was not psychotic and that 1 the medication caused plaintiff to suffer harmful side effects. (ECF No. 13.) 2 The magistrate judge found that plaintiff met the imminent danger exception to 28 U.S.C. 3 § 1915(g) based on plaintiff’s allegations in the amended complaint that the anti-psychotic 4 medication caused him to suffer harmful side effects including, in relevant part, borderline 5 diabetes, chest pains and heart palpitations.1 (ECF No. 63 at 7-8.) In support of this finding, the 6 magistrate judge cited Bradford v. Marchak, 667 Fed.Appx. 616, *617 (9th Cir. 2016). (Id. at 7.) 7 In Bradford, the Ninth Circuit reversed a district court judgment denying the plaintiff’s 8 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). The Ninth Circuit 9 found that, “Bradford plausibly alleged ‘imminent danger of serious physical injury’ given his 10 allegations of chest pain, dizziness, blurred vision and headaches from ongoing involuntary 11 psychotropic medication.” 667 Fed.Appx. at *617. 12 In the objections, defendants argue that the magistrate judge erred in finding that plaintiff 13 met the imminent danger exception based on allegations in the amended complaint. Defendants 14 suggest that the magistrate judge should have only considered the arguments raised in plaintiff’s 15 opposition, which did not demonstrate the imminent danger exception. 16 As discussed in the findings and recommendations, in his opposition, plaintiff argued that 17 he met the imminent danger exception based on assaults by guards. (ECF No. 63 at 3.) The 18 magistrate judge found that plaintiff’s claim regarding assaults by guards did not meet the 19 imminent danger exception because it was unrelated to the claims on which this action proceeds. 20 (Id. at 4.) 21 The undersigned finds that the magistrate judge did not err in considering the allegations 22 in the amended complaint in determining whether plaintiff met the imminent danger exception. 23 Defendants also argue that plaintiff’s allegations regarding imminent danger are 24 implausible. Defendants argue that plaintiff did not describe consistent side effects in his 25 complaints to prison officials in the grievances attached to the amended complaint. Defendants 26
27 1 The magistrate judge found that the side effects of halitosis and baldness do not amount to serious physical injury. The magistrate judge found that it was unclear whether gynecomastia is a 28 serious physical injury. 1 argue that the only side effects plaintiff complained of in his related grievances were baldness, 2 erectile dysfunction, weight gain and gynecomastia. 3 In the findings and recommendations, the magistrate judge cited a Health Care Services 4 Request Form dated August 17, 2020 (attached to the amended complaint) in which plaintiff 5 asked defendant Rauf to discontinue Invega because it caused plaintiff to suffer heart palpitations 6 and borderline diabetes. (ECF No. 13 at 5; ECF No. 63 at 7.) The undersigned notes another 7 Health Care Services Request Form attached to the amended complaint dated August 14, 2020 in 8 which plaintiff complained of chest pain, heart palpitations and borderline diabetes. (ECF No. 13 9 at 14.) Plaintiff attached another Health Care Services Request Form to the amended complaint 10 dated August 18, 2020 complaining of heart palpitations, borderline diabetes and gynecomastia. 11 (Id. at 16.) In another Health Care Services Form attached to the amended complaint dated July 12 30, 2020, plaintiff complains of heart palpitations and chest pain. (Id. at 20.) 13 Based on the Health Care Services Request Forms discussed above, the undersigned is not 14 persuaded by defendants’ argument that plaintiff’s failure to complain about consistent side 15 effects in his grievances renders his claims of imminent injury implausible. 16 Defendants also argue that plaintiff’s allegations of imminent harm are implausible given 17 the legal requirements that had to be met before he could be involuntarily medicated. The 18 magistrate judge found that the order for plaintiff to be involuntarily medicated did not 19 necessarily undermine plaintiff’s claim that Invega caused harmful side effects. (ECF No. 63 at 20 8.) 21 In the objections, defendants cite California Penal Code section 2602(c)(8) requiring, as a 22 basis for involuntary medication orders, that an administrative law judge determine that the 23 medication is in the inmate’s medical best interest. Whether an involuntary medication order 24 pursuant to California Penal Code section 2602(c)(8) precludes a finding of imminent physical 25 injury based on the side effects of the medication prescribed is an issue that may be developed at 26 a later stage of this litigation. The undersigned also observes that the plaintiff in Bradford, supra, 27 appears to have been subject to an involuntary medication order and the Ninth Circuit found that 28 1 he met the imminent danger exception.2 2 Defendants also argue that the magistrate judge failed to consider plaintiff’s allegations in 3 Driver v. Gibson, 2: 20-cv-0642 KJM DMC P, which is premised on similar claims.3 In 20-cv- 4 642, plaintiff alleges that in February 2020, an administrative law judge ordered that plaintiff be 5 involuntarily medicated with Invega.4 (See 20-cv-642 at ECF No. 30 at 3.) Defendants argue 6 that the timeline in 20-cv-642 indicates that plaintiff was taking the same psychotropic 7 medication months before his interactions with defendants in the instant action. Defendants argue 8 that these circumstances undercut any claim of imminent harm with respect to the treatment 9 challenged in the instant action. 10 As observed by the magistrate judge in the findings and recommendations, to meet his 11 burden under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious 12 physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical 13 injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003); see also Andrews v. Cervantes, 14 493 F.3d 1047, 1055-57 (9th Cir. 2007) (a danger may be imminent if it is ongoing: “a prisoner 15 who alleges that prison officials continue with a practice that has injured him or other similarly 16 situated in the past will satisfy the ‘ongoing danger’ standard and meet the imminence prong of 17 the three strikes exception.”) 18 While plaintiff may have been taking Invega for several months before he filed this action 19 2 The undersigned also observes that § 1915(g) “indicates that we should not make an overly 20 detailed inquiry into whether the allegations qualify for the exception.” Andrews, 493 F.3d at 1055. “Instead, the exception applies if the complaint makes a plausible allegation that the 21 prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” Id. 3 Defendants contend that the Magistrate Judge “declined to consider” plaintiff’s allegations 22 regarding 20-cv-642 raised in plaintiff’s “first opposition” to the pending motion, i.e., ECF No. 23 55. (ECF No. 69 at 7.) In the document filed June 16, 2021, identified by defendants as plaintiff’s “first opposition,” plaintiff complained that prison officials denied him access to the 24 court. (ECF No. 55 at 1.) In this pleading, plaintiff briefly addressed the pending motion. (Id. at 2-3.) On July 21, 2021, plaintiff filed a pleading clearly labeled, “Opposition to Defendants’ 25 Motion to Revoke Plaintiff’s In Forma Pauperis.” (ECF No. 56.) Defendants’ characterization of 26 plaintiff’s June 16, 2021 pleading as his “first opposition” is not entirely accurate. 4 Named as defendants in 20-cv-642 are the Office of Administrative Law, Hearing Officers 27 Gibson and Hoover and California Medical Facility Dr. Hahn. (20-cv-642 at ECF No. 30 at 2.) On August 30, 2021, Magistrate Judge Cota dismissed plaintiff’s amended complaint with leave 28 to amend. (Id. at ECF No. 49.) 1 on August 19, 2020, plaintiff’s allegations regarding the ongoing side effects of Invega satisfy the 2 ongoing danger standard and meet the imminence prong of the three strikes exception. 3 Defendants also argue that plaintiff’s complaint in 20-cv-642 does not address some of the 4 side effects he complains of in the instant action, suggesting that his condition was not so 5 significant as to cause serious harm. In 20-cv-642, the original complaint filed March 25, 2020 6 described the side effects of Invega as 1) gynecomastia; 2) painful injections; 3) hard, oily black 7 stools; and 4) possible diabetes. (20-cv-642 at ECF No. 1 at 3.) The amended complaint in 20- 8 cv-642, filed September 4, 2020, described the side effects as 1) gynecomastia; 2) painful 9 injections; 3) weight gain; and 4) heart palpitations. (Id. at ECF No. 30 at 3.) 10 At this time, the undersigned does not find that plaintiff’s failure to mention chest pains as 11 a side effect of Invega in 20-cv-642 renders plaintiff’s description of side effects in the instant 12 action not credible. 13 Finally, in the objections defendants observe that on June 14, 2021 in Driver v. CHCF, 14 21-cv-744 EFB TLN P, Magistrate Judge Brennan found that plaintiff did not meet the imminent 15 danger exception based on similar allegations.5 In 21-cv-744, Magistrate Judge Brennan found, 16 In this case, plaintiff complains that he is being forcibly medicated. ECF No. 1 at 2. Plaintiff alleges that the psychotropic drugs are 17 “literally killing” him, but the side effects he lists do not suggest this is the case. See id. at 2 (listing heart palpitations, baldness, halitosis, 18 gynecomastia, hard black oily stool, and borderline diabetes). The complaint fails to allege that plaintiff was under an imminent danger 19 of serious physical injury when he filed this action. 20 (21-cv-744 at ECF No. 7 at 2.) 21 On August 6, 2021, the Honorable Troy L. Nunley adopted the findings and 22 recommendations issued by Magistrate Judge Brennan on June 14, 2021. (Id. at ECF No. 8.) 23 In 21-cv-744, the court found that plaintiff did not meet the imminent danger exception 24 because plaintiff’s allegation that the psychotropic drugs were “literally killing” him was not 25 demonstrated by plaintiff’s description of the side effects alone. In contrast, in the instant case, 26 the magistrate judge found that plaintiff’s description of some of the side effects, including chest 27 5 Magistrate Judge Brennan filed his findings and recommendations in 21-744 after defendants 28 filed their pending motion. 1 pain which was not mentioned in 21-744, met the imminent danger exception. In other words, the 2 magistrate judge’s finding of imminent danger was not based on whether plaintiff demonstrated 3 that the side effects of Invega were “literally killing” him. The undersigned also observes that the 4 court in 21-cv-744 did not discuss Bradford v. Marchak, supra.6 For these reasons, the 5 undersigned is not persuaded by defendants’ citation to 21-744. 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 7 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 8 court finds the findings and recommendations to be supported by the record and by proper 9 analysis.7 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The findings and recommendations filed July 15, 2021, are adopted in full; 12 2. Defendants’ motion to revoke plaintiff’s in forma pauperis status (ECF No. 39) is 13 denied; 14 3. Defendants shall file a response to the amended complaint within thirty days of the 15 date of this order. 16 17 Dated: October 19, 2021 /s/ John A. Mendez 18 THE HONORABLE JOHN A. MENDEZ 19 UNITED STATES DISTRICT COURT JUDGE 20 21 22 23 24 25 26 6 Defendants do not address Bradford v. Marchak, supra, in their objections. The undersigned 27 finds this case, although unpublished, persuasive. 7 If the instant action, 20-cv-642 and 21-744 all proceed, the court may consider consolidating 28 these cases.