Richard Joseph Ashline v. S. Roberts, Chief Medical Executive

• Court: District Court, S.D. California
• Decided: January 16, 2026
• Docket: 3:25-cv-03243
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD JOSEPH ASHLINE, Case No.: 25-cv-03243-AJB-KSC CDCR #BW-6808, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS; S. ROBERTS, Chief Medical Executive, 15 AND Defendant. 16 (2) SCREENING COMPLAINT 17 PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 18 19 20 Plaintiff Richard Joseph Ashline is a state inmate proceeding pro se with a civil 21 rights Complaint pursuant to 42 U.S.C. § 1983 along with a motion to proceed in forma 22 pauperis (“IFP”). (Doc. Nos. 1–2.) 23 I. Motion to Proceed IFP 24 All parties instituting any civil action, suit, or proceeding in a district court of the 25 United States, except an application for writ of habeas corpus, must pay a filing fee of 26 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 27 although the administrative fee does not apply to persons granted leave to proceed IFP. See 28 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 1 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner 4 seeking leave to proceed IFP must submit a “certified copy of the trust fund account 5 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 6 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 7 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial 8 payment of 20% of (a) the average monthly deposits in the account for the past six months, 9 or (b) the average monthly balance in the account for the past six months, whichever is 10 greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1) & (4); Bruce 11 v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining 12 balance in “increments” or “installments,” regardless of whether their action is ultimately 13 dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce, 577 U.S. at 84. 14 In support of his IFP motion, Plaintiff has submitted a copy of his California 15 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and 16 Prison Certificate attested to by a CDCR trust account official. (Doc. No. 2 at 4.) The 17 document shows he had an average monthly balance of $0.00 and average monthly deposits 18 of $5.00, with an available balance of $0.00. (Id.) The Court GRANTS Plaintiff’s motion 19 to proceed IFP and assesses no initial partial filing fee. See Taylor v. Delatoore, 281 F.3d 20 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 21 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 22 the lack of funds available to him when payment is ordered.”) Plaintiff is required to pay 23 the $350 filing fee in full pursuant to the installment provisions of 28 U.S.C. § 1915(b)(1). 24 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 25 A. Standard of Review 26 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 27 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua 28 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 1 malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez 2 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); 3 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 4 “The standard for determining whether a plaintiff has failed to state a claim upon 5 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 6 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 7 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 8 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 9 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 10 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 11 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a 13 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 14 reviewing court to draw on its judicial experience and common sense.” Id. 15 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 16 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 17 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 18 substantive rights, but merely provides a method for vindicating federal rights elsewhere 19 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 20 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 21 secured by the Constitution and laws of the United States, and (2) that the deprivation was 22 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 23 F.3d 1128, 1138 (9th Cir. 2012). 24 B. Allegations in the Complaint 25 Plaintiff alleges that on May 25, 2025, while housed at the R.J. Donovan 26 Correctional Facility (“RJD”) in San Diego, California, Defendant RJD Chief Medical 27 Executive Roberts “denied my 602 requesting to have surgery done to [have] a hernia 28 repaired sayin[g] do not have a hernia because it doesn’t show up on the CT scan. I in fact 1 have paperwork showing I do have a hernia in my lower ab[d]omen it has been caus[]ing 2 me se[]ver[e] pain s[in]ce mid December until now mid October.” (Doc. No. 1 at 3.) 3 Plaintiff claims he has been denied his right to medical care. (Id.) Plaintiff seeks monetary 4 damages and an injunction preventing Defendant Roberts from working as a Chief Medical 5 Executive. (Id. at 7.) 6 C. Discussion 7 A denial or delay of medical care for a prisoner’s serious medical needs may 8 constitute a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104–05 9 (1976). “In order to prevail on an Eighth Amendment claim for inadequate medical care, a 10 plaintiff must show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v. 11 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Gamble, 429 U.S. at 104). 12 “[I]ndicia of a ‘serious’ medical need include (1) the existence of an injury that a reasonable 13 doctor would find important and worthy of comment or treatment, (2) the presence of a 14 medical condition that significantly affects an individual’s daily activities, and (3) the 15 existence of chronic or substantial pain.” Doty v. County of Lassen, 37 F.3d 540, 546 n.3 16 (9th Cir. 1994) (citation omitted). “Deliberate indifference ‘may appear when prison 17 officials deny, delay or intentionally interfere with medical treatment, or it may be shown 18 by the way in which prison physicians provide medical care.’” Colwell, 763 F.3d at 1066 19 (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). To show 20 deliberate indifference, a plaintiff must allege both “(a) a purposeful act or failure to 21 respond to a prisoner’s pain or possible medical need and (b) harm caused by the 22 indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). 23 While Plaintiff has sufficiently alleged a “serious medical need” arising from his 24 asserted hernia and resultant abdominal pain, see Wilhelm, 680 F.3d at 1122 (“Plaintiff’s 25 hernia was a serious medical need.”) (citations omitted), Plaintiff has not plausibly alleged 26 Defendant Roberts showed deliberate indifference to that need. Here, Plaintiff alleges he 27 has “paperwork showing I do have a hernia,” but also acknowledges Defendant Roberts 28 concluded Plaintiff “do[es] not have a hernia because it doesn’t show up on the CT scan” 1 and on that basis, Defendant Roberts denied Plaintiff’s request for surgery. (Doc. No. 1 at 2 3.) Thus, Plaintiff alleges at most that Defendant Roberts failed to diagnose his hernia or 3 that there was a disagreement between himself and Defendant Roberts as to whether 4 Plaintiff in fact suffered from a hernia and whether surgery was warranted, none of which 5 states a claim under the Eighth Amendment. See Gamble, 429 U.S. at 106 (“[A] complaint 6 that a physician has been negligent in diagnosing or treating a medical condition does not 7 state a valid claim of medical mistreatment under the Eighth Amendment. Medical 8 malpractice does not become a constitutional violation merely because the victim is a 9 prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions 10 sufficiently harmful to evidence deliberate indifference to serious medical needs.”); 11 Colwell, 763 F.3d at 1068 (“A difference of opinion between a physician and the 12 prisoner—or between medical professionals—concerning what medical care is appropriate 13 does not amount to deliberate indifference.”) (quotation marks and citation omitted); 14 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“[A] difference of medical opinion 15 . . . cannot support a claim of deliberate indifference.”) 16 Here, Plaintiff contends that Defendant Roberts denied his request for surgery (see 17 Doc. No. 1 at 3), but does not indicate what, if any, treatment Defendant Roberts prescribed 18 for his abdominal pain. Nor does Plaintiff allege how Defendant Roberts’ failure to approve 19 his request for surgery was “medically unacceptable” such that Plaintiff could potentially 20 state a claim of deliberate indifference. See Toguchi, 391 F.3d at 1058 (a claim of deliberate 21 indifference can be sustained in a situation where “the chosen course of treatment ‘was 22 medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard 23 of an excessive risk to (the prisoner’s) health.”) (quoting Jackson v. McIntosh, 90 F.3d 330, 24 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 25 1076 (9th Cir. 2014) (en banc)); accord Gordon v. County of Orange, 6 F.4th 961, 970 (9th 26 Cir. 2021). If Plaintiff wishes to proceed with an Eighth Amendment deliberate 27 indifference claim against Chief Medical Executive Roberts, he must set forth factual 28 allegations which plausibly suggest “a purposeful act or failure to respond” by Roberts in 1 the face of Plaintiff’s abdominal pain and must also allege “harm caused by that 2 indifference.” Jett, 439 F.3d at 1096 (emphasis added); see also Gamble, 429 U.S. at 106 3 (“In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently 4 harmful to evidence deliberate indifference to serious medical needs.”) 5 Accordingly, the Eighth Amendment claim in the Complaint is dismissed pursuant 6 to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 7 1112; Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 678. 8 D. Leave to Amend 9 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt 10 to sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 11 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend 12 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies 13 of the complaint could not be cured by amendment.”) (internal quote marks omitted). 14 III. Conclusion and Orders 15 Accordingly, good cause appearing, the Court: 16 1) GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 2). 17 2) DIRECTS the Secretary of the CDCR, or his 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). 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) & 1915A(b)(1) and 27 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file 28 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 1 || Amended Complaint must be complete by itself without reference to his original pleading. 2 ||Defendants not named and any claim not re-alleged in his Amended Complaint will be 3 ||considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 4 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 5 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (claims which are 6 || not re-alleged in an amended pleading may be “considered waived if not repled.’’) 7 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 8 || will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 9 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(1i) & 10 |} 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 11 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 12 take advantage of the opportunity to fix his complaint, a district court may convert the 13 || dismissal of the complaint into dismissal of the entire action.”) 14 IT IS SO ORDERED. 15 || Dated: January 16, 2026 © g 16 Hon. Anthony J. attaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 7