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George M. Pasion v. John A. Haviland

January 31, 2011

GEORGE M. PASION, PLAINTIFF,
v.
JOHN A. HAVILAND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff will be assessed an initial filing fee of $2.53. 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

Plaintiff complaint contains allegations of excessive force, inadequate medical care and retaliation.

Plaintiff states that another inmate assaulted him and they began fighting. Two guards, defendants Valdez and Freitas, arrived and ordered plaintiff and the inmate to get down. Plaintiff states that he got down on the ground but before he hit the ground he was already soaked with pepper spray. It also appears that plaintiff may have been pepper sprayed while he was on the ground, though it's not entirely clear. Plaintiff then states a witness saw the guards kick plaintiff in the ribs while he was on the ground, however plaintiff did not feel the kicks, see the kicks or apparently suffer any injury as a result of the kicks.

Plaintiff was then taken to medical where he was checked for injuries. Plaintiff states that instead of washing him with water, some unidentified person placed him in a holding cage for 45 minutes where the pepper spray penetrated his skin and eyes and he was unable to breathe properly.

Plaintiff then alleges that five months later he woke up with a swollen face and his neck and arms were irritated. Doctors at the prison treated him for a rash or allergy, despite plaintiff's insistence that this was the result of the pepper spray from five months prior. Plaintiff contends this condition became worse and several months later he was taken to an outside hospital, Doctors Hospital of Manteca. Plaintiff then states that the doctors at the hospital did not treat him for delayed reaction to pepper spray. Plaintiff states doctors repeatedly tested his blood and urine and performed a biopsy of skin from his arm. However, plaintiff alleges these doctors were somehow deliberately indifferent.

Regardless of the treatment plaintiff received at the prison and at the hospital, he has failed to identify any specific defendants who provided him with medical care. While plaintiff has listed several doctors as defendants there is no description of the specific actions of these doctors. In addition, it is not clear from the complaint if the doctors at the Doctors Hospital of Manteca are state actors under 42 U.S.C. § 1983.

Plaintiff also makes vague allegations that approximately 18 months after the alleged incident he was placed in administrative segregation in retaliation for the filing of a complaint, however, plaintiff does not present ...


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