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Jamison v. Davis Enterprise Newspaper

October 7, 2010



Jeremy Jamison, an inmate, filed this pro se civil rights action under 42 U.S.C. § 1983.This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

On July 19, 2010, the court dismissed plaintiff's first amended complaint with leave to amend. On July 26, 2010, plaintiff filed a second amended complaint. In addition, plaintiff has also filed motions "for protection of health," "for submission of evidence," "for protection and submission of evidence," "for removal from DVI," and "for submission of evidence and protective order." See Dckt. Nos. 33, 34, 36, 41.

The court must conduct an initial review of plaintiff's second amended complaint. Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

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 action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation.

See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

The court has reviewed plaintiff's second amended complaint pursuant to 28 U.S.C. § 1915A and finds that it states an eighth amendment claim against Officer Bailey and retaliation claims against Lt. Shaid and Sgt. Johnson.

Plaintiff's second amended complaint states that the CDC medical department is refusing to treat his hepatitis C because of expense. He states that Nurse Craw has sent him several memos stating that he does not have hepatitis C, but that he can prove that he does have it.*fn1 He states that officials have bypassed his 602s; that he has been threatened and told to withdraw his complaints; and that he has been denied access to the law library because of his litigation against the institution. He states that he is in danger because he has been placed with lifers when he is minimum security. He states that he almost died because Officer Bailey did not "call a man down" when he was having an asthma attack, and that although he is disabled he was forced up steep steps. He states that on separate occasions Lt. Shaid and Sgt. Johnson removed him from his cell and threatened him so that he would withdraw his 602 complaints regarding the asthma attack and being forced up the steps.

Plaintiff names as defendants Arnold Schwarzenegger and "Mr. Fong, Medical CEO, et. al." The second amended complaint alleges no facts regarding the two named defendants and therefore they must be dismissed.

The second amended complaint does not state a cognizable claim against Nurse Craw. To state a section 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). Deliberate indifference may be shown by the denial, delay or intentional interference with medical treatment or by the way in which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Neither defendant's negligence nor plaintiff's general disagreement with the treatment he received suffices to state a claim. Estelle, 429 U.S. at 106; Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988); Jackson v. McIntosh, 90 F.3d 330, 331 (9th Cir. 1996). In this case, the second amended complaint only alleges that Nurse Craw wrote memos stating that plaintiff did not have hepatitis C. The complaint does not allege that Nurse Craw had a culpable state of mind, or explain why her conduct rose to the level of deliberate indifference. This claim will therefore be dismissed with leave to amend.

The balance of plaintiff's allegations do not identify responsible defendants. He must either abandon these allegations or file a third amended complaint ...

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