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Lawson v. Hornbeak

August 6, 2009

VERDELL M. LAWSON, PLAINTIFF,
v.
TINA HORNBEAK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (DOC. 1) RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Screening Requirement

Plaintiff Verdell M. Lawson ("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 December 17, 2007. For the reasons stated below, Plaintiff is ordered to file an amended complaint or to notify the Court of her willingness to proceed only on the claims found to be cognizable in this order within thirty days.

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 § 1915A9(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 statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Swierkiewicz, 534 U.S. at 12. 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)).

II. Plaintiff's Claims

A. Summary of Complaint

Plaintiff alleges that she has been subject to constant verbal harassment and threats, including racial slurs, from Defendant Mary Perryman, Medical Technical Assistant, starting October 10, 2006. On October 10, Defendant Perryman told Plaintiff to leave the medical clinic while she was there, called her "bitch" several times and threatened to have her placed in administrative segregation. Compl. part. IV. p.3.*fn1 Plaintiff filed a 602, an inmate appeal, regarding the incident, and Defendant Perryman became even more aggressive towards Plaintiff. Defendant Perryman called Plaintiff "black bitch" several times. Compl. part. IV. p.4. Plaintiff alleges that she has forgone receiving her medication and breathing treatments from the medical clinic on some occasions to avoid Defendant Perryman.

On November 17, Plaintiff saw Dr. Sy, a psychologist, regarding issues that Plaintiff was having being called "black bitch" by Defendant Perryman. Compl. part. IV. p.4. While Plaintiff was talking to Dr. Sy, Defendant Perryman waited in the hallway, and as soon as Plaintiff walked out of the doctor's office, Defendant Perryman rushed into Dr. Sy's office and asked the psychologist whether Plaintiff had done anything to him. Plaintiff filed a 602 regarding Defendant Perryman's behavior on November 17, but Defendant Perryman only increased her threats and name calling towards Plaintiff.

Defendant Perryman would come up and stand so close to Plaintiff that she feared for her physical safety, and Defendant Perryman would also threaten to hit the alarm and tell other correctional officers that Plaintiff had threatened her.

Plaintiff alleges that the constant verbal abuse and threats from Defendant Perryman triggered schizoaffective disorder. Plaintiff has a history of mental abuse, and has been emotionally traumatized by Defendant Perryman's verbal abuse and threats. Plaintiff seeks damages from Defendant Tina ...


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