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Avila v. Stainer

September 3, 2008

ALEXANDER AVILA, PLAINTIFF,
v.
JERRY STAINER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 3)

I. Screening Order

Plaintiff Alexander Avila ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on May 15, 2002. On August 30, 2007, United States District Judge Ware of the California Northern District screened and dismissed plaintiff's claims for damages that were not cognizable under Heck v Humphrey, 514 U.S. 477, 487 (1994), and transferred the remaining claims alleging unconstitutional prison conditions to this district. (Docs. 1 and 3).

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

Having reviewed plaintiff's complaint, it appears that the bulk of plaintiff's claims have already been dismissed by on the grounds that they were not cognizable in light of Heck. The remainder of the claims left to be screened are interspersed throughout plaintiff's forty-five page complaint. It appears that the most prudent course of action is to dismiss plaintiff's complaint with leave to amend. In the paragraphs below, the court has summarized plaintiff's claims, and has included the applicable legal standards, which plaintiff should use in drafting his amended complaint.

II. Summary of Plaintiff's Medical Claim

Plaintiff is currently housed at Avenal State Prison, where the events giving rise to his medical claim took place.

Plaintiff states that from March 2002 to the time of filing suit, plaintiff was continually turned away from the pharmacy window without his prescribed heart medication by Medical Team Associates John Does 9, 10, 11 and 12. Plaintiff states that he filed a prison grievance on March 20, 2002 and was given a 30-day supply of medication the very next day. Plaintiff states that on the following day his locker was searched by staff and his medication was taken away. Since the confiscation, plaintiff states that he has been continually sent away from the pharmacy window without receiving his heart medication. Plaintiff contends that Does 9, 10, 11, and 12 retaliated against plaintiff for using the appeals process by having his heart medication confiscated.

Plaintiff alleges that from John Does 9, 10, 11, 12 and defendant Warden Huskey have been engaged in a terrorist plot to kill or harm plaintiff. Plaintiff alleges that defendant Huskey "is responsible for having plaintiff's heart medication discontinued and for those under his supervision to confiscate the heart medication from plaintiff's locker that was issued to plaintiff." (Compl, p.29).

A. Eighth Amendment

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "'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 defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)).

Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested "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." Id. (citing McGuckin at 1060 (internal quotations omitted)). Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an ...


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