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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID D. HARRIS,
Plaintiff,
vs.
NURSE RICHMOND; DR. BLAISDELL,
Defendants.
Case No.: 25-cv-1574-BAS-DDL
ORDER:
(1) VACATING JUDGMENT AND
REOPENING CASE;
(2) GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS; AND
(3) DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) & 1915A(b)
On June 13, 2025, pro se Plaintiff David D. Harris, a state inmate incarcerated at the
Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California filed a civil
rights complaint pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma
pauperis (“IFP”). (ECF Nos. 1, 2.) On July 11, 2025, the Court denied the IFP motion
because it was not accompanied by a certified trust account statement. (ECF No. 3.) The
Court nevertheless granted Plaintiff additional time to pay the filing fee or submit a
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certified trust account statement on or before August 25, 2025. (Id.) On September 24,
2025, having not heard from Plaintiff, the Court dismissed the case without prejudice for
failure to satisfy the filing fee requirement. (ECF Nos. 4, 5.)
On October 2, 2025, Plaintiff submitted a certified copy of his inmate trust account
which the Court accepted. (ECF No. 6.) The Court thus VACATES the September 24,
2025, judgment and ORDERS the Clerk of Court to reopen the case.
In this Order, the Court first addresses Plaintiff’s motion to proceed IFP. Second, the
Court screens the complaint given leave to proceed IFP.
I. 	Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the
United States, except an application for writ of habeas corpus, must pay a filing fee of
$405.00, consisting of a $350.00 statutory fee plus a $55.00 administrative fee, although
the administrative fee does not apply to persons granted leave to proceed IFP. See 28 U.S.C.
§ 1914(a).
The action may proceed despite a plaintiff’s failure to prepay the entire fee only if
he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v.
Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner seeking leave to proceed IFP
must submit a “certified copy of the trust fund account statement (or institutional
equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.”
28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the
certified trust account statement, the Court assesses an initial payment of 20% of (a) the
average monthly deposits in the account for the past six months, or (b) the average monthly
balance in the account for the past six months, whichever is greater, unless the prisoner has
insufficient assets. See 28 U.S.C. § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84
(2016). Prisoners who proceed IFP must pay any remaining balance in “increments” or
“installments,” regardless of whether their action is ultimately dismissed. 28 U.S.C. §
1915(b)(1)&(2); Bruce, 577 U.S. at 84.
Here, in support of his IFP motion, Plaintiff has submitted a copy of his California
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Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and
Prison Certificate attested to by a CDCR trust account official. (ECF No. 6.) The document
shows he had an average monthly balance of $11.52 and average monthly deposits of
$13.36, with an available balance of $4.42. (Id.) Thus, the Court GRANTS Plaintiff’s
motion to proceed IFP and assesses an initial partial filing fee of $2.67. However, this
initial fee need be collected only if sufficient funds are available in Plaintiff’s account at
the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event
shall a prisoner be prohibited from bringing a civil action or appealing a civil action or
criminal judgment for the reason that the prisoner has no assets and no means by which to
pay the initial partial filing fee”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002)
(finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a
prisoner’s IFP case based solely on “failure to pay . . . due to the lack of funds available to
him when payment is ordered”).
II. 	Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
A. 	Standard of Review
Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-answer
screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte
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. See Lopez v. Smith,
203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d 1002,
1004 (9th Cir. 2010).
“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
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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
acting under color of state law, violate federal constitutional or statutory rights.” Devereaux
v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
substantive rights, but merely provides a method for vindicating federal rights elsewhere
conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (citation modified). “To
establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by
the Constitution and laws of the United States, and (2) that the deprivation was committed
by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128,
1138 (9th Cir. 2012).
B. 	Allegations in the Complaint
Plaintiff alleges that on May 10, 2025, he was suffering from auditory hallucinations
which caused him to be suicidal and to cut his wrist and forearm. (ECF No. 1-2.) Defendant
Nurse Richmond responded 25 minutes later although her desk was located five feet from
Plaintiff’s cell. (Id.) Plaintiff alleges Nurse Richmond put a clear bandage on his arm but
could have wrapped it tightly and given him pain medication but did not, and that
Defendant Dr. Blaisdell could have sutured his cut at the prison but decided to transfer him
to an outside hospital 30-40 minutes away. (Id.) Plaintiff lost a quarter pint of blood
requiring a transfusion and a five-day hospital stay; he suffered extreme pain. (Id.) He
claims that Nurse Richmond and Dr. Blaisdell were negligent and deliberately indifferent
to his medical needs, and that they should have taken the incident more seriously because
he still had a bandage on a 21-inch laceration from his “last episode.” (Id.)
Plaintiff alleges that before Dr. Blaisdell sent him to the hospital he asked Nurse
Richmond, “[W]as that the same Harris from A-yard?,” to which Nurse Richmond
responded “Yes, do you know him?,” and Dr. Blaisdell replied yes, Plaintiff was one of his
patients. (Id. at 2.) That exchange was of little importance to Plaintiff at the time, but he
now suspects Dr. Blaisdell “may have delayed [medical care out] of malice,” because
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Plaintiff has “filed several complaints against him for malpractice for taking [Plaintiff’s]
pain medication away without discussing an alternative solution to [his] wellbeing.” (Id.)
C. 	Analysis
The Eighth Amendment’s prohibition on the infliction of cruel and unusual
punishment creates an “obligation to provide medical care for those whom it is punishing
by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101–03 (1976). “[A] prison official
violates the Eighth Amendment when two requirements are met. First, the deprivation
alleged must be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834
(1994). Second, a plaintiff must allege that the prison official had a “‘sufficiently culpable
state of mind’ . . . [T]hat state of mind is one of ‘deliberate indifference’ to inmate health
or safety.” Id. Thus, 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 837.1 “[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.” Doty v.
County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994).
Here, the complaint alleges negligence or at most a disagreement between Plaintiff
and his nurse over whether his cut should have been bandaged differently, and with his
treating physician over whether his cut should have been sutured at the prison rather than
1 “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)). Deliberate indifference can also 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.
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the hospital. See Colwell, 763 F.3d at 1068 (“A difference of opinion between a physician
and the prisoner—or between medical professionals—concerning what medical care is
appropriate does not amount to deliberate indifference.”); Toguchi, 391 F.3d at 1058 (a
disagreement over the necessity or extent of medical treatment does not show deliberate
indifference); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (“A difference of opinion
does not amount to a deliberate indifference to [plaintiff]’s serious medical needs.”);
Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970) (“[A] difference of opinion between
a prisoner patient and prison medical authorities as to what treatment is proper and
necessary does not give rise to a claim under [§ 1983].”)
Plaintiff alleges that Dr. Blaisdell sent him to the outside hospital rather than suture
the cut himself at the prison, not out of medical discretion but due to past complaints of
malpractice. However, there are no factual allegations which would plausibly support such
a claim. Plaintiff relies on speculation, merely stating that Dr. Blaisdell acknowledged that
he recognized Plaintiff as a prior patient. See Iqbal, 556 U.S. at 678 (stating that the “mere
possibility of misconduct” falls short of the plausibility standard); Wood v. Yordy, 753 F.3d
899, 905 (9th Cir. 2014) (noting that “mere speculation that defendants acted out of
retaliation is not sufficient” to state a claim). If Plaintiff wishes to proceed with an Eighth
Amendment deliberate indifference claim against either Nurse Richmond or Dr. Blaisdell,
he must set forth factual allegations which plausibly suggest they knew of and disregarded
an excessive risk to his health and safety, by showing they were “aware of facts from which
the inference could be drawn,” that he faced “a substantial risk of serious harm” by
bandaging his cut and sending him to the hospital rather than providing different or faster
care at the prison, and actually drew that inference. Farmer, 511 U.S. at 837; see also
Estelle, 429 U.S. at 105–07 (“[A]n inadvertent failure to provide medical care, mere
negligence or medical malpractice and differences of opinion over what medical treatment
is proper, do not state an Eighth Amendment claim.”); Iqbal, 556 U.S. at 678 (noting that
a complaint is subject to dismissal for failure to state a claim if it does not “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
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face,” and the “mere possibility of misconduct” falls short of meeting this plausibility
standard).
Thus, the Complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
for failure to state a claim.
D. 	Leave to Amend
In light of his pro se status, the Court grants Plaintiff leave to amend his Complaint
to address the pleading deficiencies identified in this Order. See Rosati v. Igbinoso, 791
F.3d 1037, 1039 (9th Cir. 2015) (citation modified) (“A district court should not dismiss a
pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless
it is absolutely clear that the deficiencies of the complaint could not be cured by
amendment.”).
III. 	Conclusion
Accordingly, good cause appearing, the Court:
1. 	VACATES the Court’s August 25, 2025, judgment and ORDERS the Clerk
of Court to reopen the case.
2. 	GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).
3. 	DIRECTS the Secretary of the CDCR, or his designee, to collect from
Plaintiff’s prison trust account the $2.67 initial filing fee as well as the remaining $347.33
balance of the $350 filing fee owed in this case by collecting monthly payments from the
account, in an amount equal to twenty percent (20%) of the preceding month’s income,
and forwarding payments to the Clerk of Court each time the amount in the account exceeds
$10 in accordance with 28 U.S.C. § 1915(b)(2). The initial fee need be collected only if
sufficient funds are available in Plaintiff’s account at the time this Order is executed.
4. 	DIRECTS the Clerk of Court to serve a copy of this Order by U.S. Mail on
Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O.
Box 942883, Sacramento, California, 94283-0001.
5. 	DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and
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GRANTS Plaintiff leave to file an amended complaint to cure the deficiencies of pleading
noted in this Order by or on January 15, 2026.
Plaintiff’s amended complaint must be complete by itself without reference to the
original pleading. Defendants not named and any claim not re-alleged in his amended
complaint will be considered waived. See Hal Roach Studios, Inc. v. Richard Feiner and
Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
original.”).
If Plaintiff fails to file an amended complaint within the time provided, the
Court will dismiss the case without prejudice based on Plaintiff’s failure to state a
claim upon which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
1915A(b)(1), and his failure to prosecute in compliance with a court Order. See Lira
v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of
the opportunity to fix his complaint, a district court may convert the dismissal of the
complaint into dismissal of the entire action.”)
IT IS SO ORDERED.
DATED: November 21, 2025
Hon. Cynthia Bashant, Chief Judge
United States District Court
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