United States District Court, D. Montana, Missoula Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH, Magistrate Judge.
This matter comes before the Court on Plaintiffs Brandon Burns and Kevin Nessland's proposed Complaint and Motions to Proceed in Forma Pauperis. (Docs. 1, 2, 3.) Burns and Nessland both signed the Complaint which raises two claims. The first is their common claim that they were denied medical care based upon Defendants alleged failure to provide them adequate pain medication. The Complaint alleges Burns suffers from severe pain, immobility, and swelling as a result of a bilateral hip replacement for which he had been prescribed (prior to his incarceration) 800 mg of ibuprofen three time a day. Nessland suffers from pain, swelling, and tendinitis in both knees due to a double knee reconstruction. Nessland's physician had prescribed him 800 mg of ibuprofen twice a day for this condition. (Complaint, Doc. 3-1 at 1.)
The second claim, which pertains only to Burns, is that Burns was arrested by a parole officer on February 14, 2014 and held at the Missoula County Detention Facility without a bond appearance or notice of any kind until March 5, 2014 when he was served with a hearing notice for March 7, 2014. Burns requested from the Detention Facility the statutory authority for the hold several times during the three weeks he was in the facility but was not provided the information. He alleges that he was either held illegally or the Detention Facility "is in violation of not providing citizens with public documents on demand as guaranteed by statute with mandatory language with creates a federally protected liberty interest." (Complaint, Doc. 3-1 at 3-4.)
Burns and Nessland are no longer incarcerated at the Missoula County Detention Facility. On March 18, 2014, Burns filed a notice of change of address indicating he is now incarcerated at the START Program in Anaconda, Montana. (Doc. 5.) Correspondence sent to Nessland at the Missoula County Detention Facility has been returned as undeliverable. (Doc. 7.)
I. Motions to Proceed in Forma Pauperis
Prisoners seeking to bring a civil action in forma pauperis are subject to the restrictions and requirements of the Prison Litigation Reform Act. One such requirement is "if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee." 28 U.S.C. § 1915(b)(1). Accordingly, while a prisoner plaintiff granted pauper status may be allowed to pay only an initial partial filing fee, he ultimately will be required to pay the full filing fee through installment payments drawn from his inmate trust account.
The three federal circuits that have directly considered the issue all have agreed that this statutory requirement of full payment of the filing fee remains applicable when multiple prisoners seek to join as co-plaintiffs in a single action, such that each prisoner still must pay the full filing fee. See Hagan v. Rogers, 570 F.3d 146, 155-56 (3rd Cir. 2009); Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004); Hubbard v. Haley, 262 F.3d 1194, 1197-98 (11th Cir. 2001). Finding this authority persuasive, both Burns and Nessland may each be required to pay the full filing fee.
Burns and Nessland each submitted a separate motion to proceed in forma pauperis but Nessland failed to provide a copy of his account statement with his motion. In addition, Nessland has not responded to the Clerk of Court's March 17, 2014 letter telling him an account statement was necessary. Without a proper account statement, the Court cannot rule on Nessland's motion. As there is no way to contact Nessland, the Court will recommend that his motion to proceed in forma pauperis be denied and he be dismissed from this action.
Burns submitted a declaration and account statements which this Court finds to be sufficient to make the showing required by 28 U.S.C. §1915(a). Accordingly, his request to proceed in forma pauperis will be granted. Pursuant to 28 U.S.C. § 1915(b)(1), Burns is required to pay the statutory filing fee for this action of $350.00. Because the Court does not know the current balance of Burns' account, it will waive payment of an initial partial filing fee. However, Burns will be obligated to make monthly payments of 20 percent of the preceding month's income credited to his institutional account. By separate order, the Court will direct the agency having custody of Burns to forward payments from Burns' account to the Clerk of Court each time the amount in the account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
II. Preliminary Screening
Pursuant to the federal statute governing proceedings in forma pauperis, federal courts must engage in a preliminary screening of cases to assess the merits of the claims. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A; see also Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th Cir. 1984). Accordingly the Court must now prescreen the Complaint and identify cognizable claims, or dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief can be granted, or if the complaint seeks monetary relief from a defendant who is immune from such relief. Id.
A. Medical Care
To state a § 1983 claim for failure to provide medical care, a prisoner must allege a defendant's "acts or omissions [were] sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986).
In the Ninth Circuit, the test for deliberate indifference to medical needs is two-pronged: (1) "the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain"; and (2) "the plaintiff must show the defendant's response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)(quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
The second prong requires a showing of: "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Wilhelm, 680 F.3d at 1122 quoting Jett, 439 F.3d at 1096. "Such indifference may be manifested in two ways. It may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Hutchinson v. U.S., 838 F.2d 390, 394 (9th Cir. 1988)(citing Estelle, 429 U.S. at 104-05). Allegations that treatment has been requested and denied because a ...