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Roll v. California Dep't of Corrections and Rehabilitation

August 2, 2009

MARK ROLL, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND OR GIVING PLAINTIFF OPPORTUNITY TO VOLUNTARILY DISMISS ACTION WITHOUT PREJUDICE

Plaintiff Mark Roll ("Plaintiff"), proceeding pro se and in forma pauperis, filed the instant action on November 4, 2008. Pursuant to Court order, he filed a Third Amended Complaint on July 20, 2009.*fn1 Plaintiff names the California Department of Corrections and Rehabilitation ("CDCR"), Lt. Fischer of CDCR, Paul Sanchez of CDCR, Deputy Coroner Joseph Matthew Tiger, the Fresno County Coroner and Does 1-100 as Defendants.

In the Court's last order dismissing the Second Amended Complaint with leave to amend, the Court granted Plaintiff a final opportunity to correct his complaint by naming individuals and alleging a proper Eighth Amendment claim. Although the Third Amended Complaint presents new deficiencies, the Court will not dismiss it on this basis because the issues in the prior order have been corrected.

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

Fed. R. Civ. P. 8(a) provides:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support Plaintiff's claim. Id. Although a complaint need not outline all elements of a claim, it must be possible to infer from the allegations that all elements exist and that there is entitlement to relief under some viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998).

In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Plaintiff's Allegations

Plaintiff's complaint involves the death of Justin Roll while in custody of Defendant CDCR.*fn2 He alleges that Defendants failed to provide proper medical care, among other things, which ultimately led to Mr. Roll's death. Specifically, Plaintiff alleges that CDCR failed to provide proper medical care, failed to dispense medications, failed to provide necessary treatment and failed to carry out and follow procedures regarding Mr. Roll's safety. Plaintiff alleges that these "actions" and "inactions" caused his son's death. Plaintiff also alleges that Defendants failed to properly investigate Mr. Roll's death and produced fraudulent records relating to his medical treatment. Plaintiff further alleges that the Fresno County Coroner failed to provide complete and consistent reports and maintained inconsistent records.

For the first time, Plaintiff has submitted exhibits and medical records in support of his action. According to the records, Justin Roll died on June 27, 2005.

Based on these general facts, Plaintiff alleges causes of action against Defendants for (1) violation of the Mr. Roll's federal civil rights; (2) general negligence; (3) gross negligence; (4) intentional tort; (5) medical malpractice; (6) professional ...


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