Lemus v. Robinson

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BENJAMIN ROMERO LEMUS,
CDCR #P-78464,
Plaintiff,
vs.
TOR ROBINSON, Physician’s Assistant,
Defendant.
Case No.: 25-cv-00162-RBM-BLM
ORDER DIRECTING U.S.
MARSHAL TO EFFECT SERVICE
OF FIRST AMENDED COMPLAINT
AND SUMMONS ON DEFENDANT
ROBINSON PURSUANT TO 28
U.S.C. § 1915(d) & Fed. R. Civ. P.
4(c)(3)
On January 21, 2025, Plaintiff Benjamin Romero Lemus, a state inmate proceeding
pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a motion to
proceed in forma pauperis (“IFP”). 	(Doc. 1–3.) 	On May 7, 2025, the Court granted
Plaintiff leave to proceed IFP and dismissed the Complaint with leave to amend for failure
to state a claim after notifying him of its pleading deficiencies. 	(Doc. 4.) 	Following an
extension of time, Plaintiff filed a First Amended Complaint (“FAC”). (Doc. 6.)
I. 	Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
A. 	Standard of Review
Because Plaintiff is a prisoner proceeding IFP, his FAC requires a pre-Answer
screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 	The Court must sua sponte
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dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails
to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203
F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)).
“The standard for determining whether a plaintiff has failed to state a claim upon
which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule
12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a
complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id.
B. 	Allegations in the FAC
Plaintiff alleges he underwent nasal surgery at an outside hospital on January 25,
2023, performed by Dr. Driskill, whose post-operative instructions included orders to
provide Plaintiff with regular meals, ice, drip pads, Tylenol and Motrin for anticipated pain,
and for the removal of the nose splint in seven days at the hospital or at the prison if the
prison physician felt comfortable doing so. (Doc. 6 at 3–4.) Plaintiff returned to the prison
and was housed in the Correctional Treatment Center (“CTC”) triage and treatment area
waiting to be cleared to return to the yard, but was not provided any of those items. (Id. at
4.) While at CTC he experienced dizziness, headaches, facial, chest and chronic sinus pain,
and trouble breathing. (Id.) He informed Nurse Giovanna and CTC medical staff that he
was in pain and having trouble breathing, but they “deliberately denied plaintiff access to
pain medication and Dr. Driskill’s post operative instructions.” (Id.)
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On February 1, 2023, Plaintiff had a post-op appointment with Physician’s Assistant
Robinson, the only Defendant named in this action. (Id. at 5.) Robinson noticed excessive
swelling around Plaintiff’s eyes and nose and said, “let’s remove those.” 	(Id.) 	Plaintiff
asked for a numbing agent and Robinson chuckled and said, “let me consult with myself,”
and then said, “I don’t think so.” (Id. at 6.) Robinson had Plaintiff recline backwards and
inserted a tweezer-like instrument into his left nostril to remove the stitches and splint,
“causing plaintiff to cry from excruciating ‘sheer’ unbearable pain.” 	(Id.) 	Based on
Plaintiff’s reaction, Robinson said he “needed to read up on the procedure” and left the
room. (Id.) When Robinson returned, Plaintiff asked him if he knew what he was doing
and why he had started a procedure with which he was unfamiliar. (Id.) Robinson tried
the same procedure on the right nostril with the same result. 	(Id.) 	“After three violent
forceful attempts,” Robinson removed the splints and stitches. (Id.) Plaintiff claims that
by 	failing 	to 	provide 	pain 	medication 	before 	the 	procedure 	Robinson 	created 	an
unreasonable risk of serious harm which constituted deliberate indifference to a serious
medical need. (Id. at 7.)
After the procedure Plaintiff was unable to breathe properly and thought Robinson
had damaged his nose, so he submitted an urgent care request form. (Id.) On February 3,
2023, Plaintiff had a telemedicine visit with Dr. Driskill, who determined he had a nasal
obstruction and purulent nasal drainage, and prescribed antibiotics to combat an infection
developing in his lungs. (Id.) Between February and April 2023, Plaintiff was treated for
breathing difficulties at CTC and contracted multifocal pneumonia and chronic bronchitis
because of Robinson’s actions. (Id.) Plaintiff states that he endured breathing difficulty,
chest pain and coughing up green phlegm for 15 months, during which he was prescribed
two courses of antibiotics. (Id. at 7–8.)
On April 5, 2024, Plaintiff had a teleconference with Dr. Driskill who diagnosed
Plaintiff with a deviated septum, turbinate hypotrophy, purulent mucus, and deviated nasal
bones. (Id. at 8.) Dr. Driskill noted that Plaintiff’s nose was “not how he left it” after the
first surgery, “shook his head in disbelief,” and recommended a second surgery, after which
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he stated he would remove the stitches himself at the hospital. (Id.) A second surgery took
place on May 1, 2024. (Id. at 9.) Plaintiff claims Robinson was deliberately indifferent to
his medical needs in violation of the Eighth Amendment by conducting a procedure he was
not qualified to perform which resulted in 15 months of pain and suffering, a second
surgery, and permanent damage to his nasal structure. (Id. at 9–12.)
C. 	Discussion
The Eighth Amendment’s prohibition on the infliction of cruel and unusual
punishment “establish the government’s obligation to provide medical care for those whom
it is punishing by incarceration.” 	Estelle v. Gamble, 429 U.S. 97, 101–03 (1976).
“Deliberate indifference ‘may appear when prison officials deny, delay or intentionally
interfere with medical treatment.’” 	Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.
2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)).
“[A] prison official violates the Eighth Amendment only when two requirements are
met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Second, Plaintiff must allege the prison official he seeks to hold liable had a “‘sufficiently
culpable state of mind,’” that is “[i]n prison conditions cases … one of ‘deliberate
indifference’ to inmate health or safety.” 	Id. (quoting Wilson, 501 U.S. at 302–03). 	A
prison official can be held liable only if he “knows of and disregards an excessive risk to
inmate health and safety;” he “must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 837.
Plaintiff has plausibly alleged a serious medical need. See Doty v. Cnty. of Lassen,
37 F.3d 540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of a ‘serious’ medical need include (1) the
existence of an injury that a reasonable doctor would find important and worthy of
comment or treatment, (2) the presence of a medical condition that significantly affects an
individual’s daily activities, and (3) the existence of chronic or substantial pain.”)
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Deliberate indifference to that serious medical need can be shown where the chosen
course of medical treatment was “medically unacceptable under the circumstances” and
chosen “in conscious disregard of an excessive risk to the prisoner’s health.” 	Toguchi v.
Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). However, allegations of inadequate medical
treatment, medical malpractice, or even gross negligence by themselves do not rise to the
level of an Eighth Amendment violation. See Farmer, 511 U.S. at 835 (“[N]egligen(ce) in
diagnosing or treating a medical condition” does not amount to deliberate indifference)
(quoting Estelle, 429 U.S. at 106); see also Estelle, 429 U.S. at 106 (“an inadvertent failure
to provide adequate medical care,” negligence, “or malpractice does not become a
constitutional violation merely because the victim is a prisoner.”).
Plaintiff alleges Robinson was unqualified to perform the procedure used to remove
the splint and stitches, as shown by having stopped during the first attempt when Plaintiff
cried in pain, excused himself because he “needed to read up on the procedure,” then
returned and removed the splint and stitches on the third try following another failed
attempt which caused Plaintiff excruciating pain, ultimately resulting in permanent damage
to Plaintiff’s nose. (Doc. 6 at 6–7.) This allegedly occurred in violation of Dr. Driskill’s
post operative orders that the stitches and splint should be removed at the hospital unless a
prison physician determined they could safely be removed at the prison. 	(Id.) 	Plaintiff
alleges Dr. Driskill “shook his head in disbelief” when he examined Plaintiff and ordered
a second surgery which should not have been necessary. 	(Id. at 8.) 	Thus, Robinson, a
physician’s assistant, allegedly made the decision to remove the stitches and splint knowing
that Dr. Driskill wanted that procedure to be done at the hospital unless a prison physician
determined it could be performed at the prison, and completed the procedure only after two
failed attempts which caused Plaintiff excruciating pain and permanent damage, between
which he had to read up on the procedure.
Given the Court is required to “accept all factual allegations in the [FAC] as true and
construe [them] in the light most favorable to [plaintiff,] at this stage, and the “low
threshold” to pass screening, Wilhelm, 680 F.3d at 1123, Plaintiff has plausibly alleged an
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Eighth Amendment deliberate indifference clam against Robinson, who, by knowingly
ignoring Dr. Driskill’s order that only a physician should decide whether the stitches and
splint be taken out at the prison or the hospital, chose a course of medical treatment that
was “medically unacceptable under the circumstances . . . in conscious disregard of an
excessive risk to the prisoner’s health.” Toguchi, 391 F.3d at 1058; see also Colwell, 763
F.3d at 1066 (deliberate indifference may be shown when prison officials “intentionally
interfere with medical treatment.”); Farmer, 511 U.S. at 837 (a prison official can be held
liable if he “knows of and disregards an excessive risk to inmate health or safety.”)
Accordingly, Plaintiff is entitled to have the U.S. Marshal effect service of the
summons and FAC against Defendant Robinson. 	See 28 U.S.C. § 1915(d) (“The officers
of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed.
R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United States marshal
or deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. § 1915.”)
II. 	Conclusion and Orders
Accordingly, the Court:
1) 	DIRECTS the Clerk to issue a summons as to the First Amended Complaint
(Doc. 6) for Defendant Robinson and forward it to Plaintiff along with a blank U.S. Marshal
Form 285. 	The Clerk will provide Plaintiff with certified copies of the First Amended
Complaint and summons for use in serving this Defendant. Upon receipt of this “In Forma
Pauperis Package,” Plaintiff must complete the USM Form 285 as completely and
accurately as possible, include an address where Defendant may be found and/or subject
to service pursuant to S.D. Cal. CivLR 4.1(c), and return the forms to the United States
Marshal according to the instructions the Clerk provides in the letter accompanying the In
Forma Pauperis Package.
2) 	ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint
and summons upon Defendant Robinson as directed by Plaintiff on the USM Form 285.
Costs of service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R.
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Civ. P. 4(c)(3).
3) 	ORDERS Defendant, once served, to respond to Plaintiff’s First Amended
Complaint and any subsequent pleading filed in this matter in which defendant is named
as a party within the time provided by the applicable provisions of Federal Rules of Civil
Procedure 12(a) and 15(a)(3). 	See 	42 U.S.C. § 1997e(g)(2) (while defendant may
occasionally be permitted to “waive the right to reply to any action brought by a prisoner
confined in any jail, prison, or other correctional facility under section 1983,” once the
Court has conducted its sua sponte screening defendant is required to respond).
4) 	ORDERS Plaintiff, after service has been made by the U.S. Marshal, to serve
upon Defendant, or if appearance has been entered by counsel, upon Defendant’s counsel,
a copy of every further pleading, motion, or other document submitted for the Court’s
consideration pursuant to Federal Rule of Civil Procedure 5(b). Plaintiff must include with
every original document sought to be filed with the Clerk, a certificate stating the manner
in which a true and correct copy of that document has been served on defendants or their
counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document received by
the Court which has not been properly filed with the Clerk, or which fails to include a
Certificate of Service upon a defendant, or their counsel, may be disregarded.
IT IS SO ORDERED.
Dated: January 28, 2026
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