Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Avery v. Gonzalez

April 20, 2010

SHANNON LEWIS AVERY, PLAINTIFF,
v.
G. GONZALEZ, ET AL., DEFENDANTS.



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

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO FILE A SECOND AMENDED COMPLAINT

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's first amended complaint, filed in response to an earlier order dismissing the original complaint with leave to amend.

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).

Plaintiff, in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Avenal State Prison, brings this action, naming 134 individual defendants. Plaintiff sets forth numerous claims, including claims pursuant to the Americans With Disabilities Act, 42 U.S.C. § 12132 et seq. , deliberate indifference to medical needs, breach of fiduciary duty, negligent infliction of emotional distress, intentional infliction of emotional distress, failure to protect, terrorist threats, assault and battery, professional negligence, retaliation, First Amendment right to redress grievances, cruel and unusual punishment and denial of medical care.

This action proceeds on the first amended complaint lodged with the court on October 27, 2009. The first amended complaint was submitted in response to an earlier order dismissing the original complaint and granting Plaintiff leave to file an amended complaint. In the order dismissing the original complaint, the court noted the following.

The original complaint consists of 104 handwritten pages. 73 pages of the original complaint contain factual allegations. The court noted that "Plaintiff states come cognizable claims and may be able to amend to correct deficiencies in his pleading so as to state additional cognizable claims." Specifically, the court advised Plaintiff, claim by claim, of the deficiencies in the complaint. The court addressed each of these claims in the original complaint.

Retaliation

In the original complaint, Plaintiff alleged that Defendants Gonzales, Amaya and Alfaro retaliated against him for filing inmate grievances. The court advised Plaintiff of the legal standards applicable to a retaliation claim. The court advised Plaintiff that he stated a cognizable claim for retaliation against Defendants G. Gonzales, J. Amaya and E. Alfaro.

Deliberate Indifference to Medical Needs

Plaintiff alleged that Gonzales, Amaya and Alfaro were deliberately indifferent to his serious medical needs. The court advised Plaintiff of the legal standards applicable to a retaliation claim. The court advised Plaintiff that he failed to state a claim against Defendant Alfaro on this claim.

Cruel and Unusual Punishment/Failure to Protect

Plaintiff alleges that Defendants G. Gonzales, J. Amaya and E. Alfaro subjected him to cruel and unusual punishment by placing him at risk of serious harm. The court advised Plaintiff of the legal standards applicable to a retaliation claim. The court advised Plaintiff that he had not stated any allegations to show that Defendants G. Gonzales, J. Amaya or E. Alfaro inflicted pain pointlessly. The court noted, however, that Plaintiff did allege that they created a risk to his safety. The court found that Plaintiff stated cognizable claims against Defendants Alfaro, Amaya and Gonzales for failure to provide for his safety.

Inmate Appeals

The court noted that Plaintiff's only allegations on this claim related to Defendant Pennywell's involvement in the processing and reviewing of Plaintiff's inmate grievances. Plaintiff was advised that since he has neither a liberty or substantive right in inmate appeals, he fails to state a cognizable claim for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.