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William Douglas Mello v. J. Nepomuceno

December 1, 2011

WILLIAM DOUGLAS MELLO,
PLAINTIFF,
v.
J. NEPOMUCENO, ET AL.,
DEFENDANTS.



ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS (Doc. 19)

I. Factual and Procedural Background

William Douglas Mello ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff asserts that he is "sovereign" and that he brings this action as "Kincaid®, d/b/a: William Douglass Mello®." Doc. 19 at 1, 21. On November 9, 2009, Plaintiff filed his original complaint. Doc. 1. On March 29, 2011, Plaintiff filed the first amended complaint which is currently before the Court. Doc. 19.

II. Screening

A. Screening Standard

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).

"'Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.'" Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden Hayes, 213 F.3d 443, 447 (9th Cir.2000). "'Additionally, in general, courts must construe pro se pleadings liberally.'" Id. A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and 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, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

B. Plaintiff's Complaint

Plaintiff is incarcerated at Pleasant Valley State Prison in Coalinga California, and is suing under section 1983 against defendants who are employed at High Desert State Prison ("HDSP") in Susanville California and Pleasant Valley State Prison ("PVSP") in Coalinga California. Doc. 19. In his complaint, Plaintiff names the following defendants: 1) J. Nepomuceno (Chief Surgeon at HDSP); 2) Dorothy Swingle (CMO at HDSP); 3) E. Searcy (Certified Physician's Assistant); 4) D. Medina (Certified Physician's Assistant); 5) Barry I. Green (Certified Physician's Assistant); 6) E. Brown (Certified Physician's Assistant); 7) F. Igbinosa (CMO at Pleasant Valley State Prison); 8)

A. Nesbit (Medical Appeals Coordinator at PVSP); 9) F. Martinez (Medical Appeals Coordinator); 10) J. Buckley (Associate Warden); 11) J. Walker (Chief of Third Level Appeals); and 12) R. Wilson (Certified Physician's Assistant at PVSP). Doc. 1 at 2-3. As relief Plaintiff seeks for the Court to enter a judgment which would "[secure and perfect] claim as evidence by [section 1 of the Uniform Commercial Code] financing statement attached" and a court order of "a 'consent judgment' and follow-up enforcement and collection of lien" in addition compensatory damages. Doc. 19 at 3, 16-17.

Plaintiff's complaint is rambling, incoherent and filled with language regarding his status as a secured party creditor. Doc. 19. Plaintiff makes conclusory allegations that his due process and equal protection rights have been violated and that he has been a victim of fraud and dishonor. Doc. 19 at 5. For example, Plaintiff states:

Pursuant to the (CAFY) conditional acceptance for value, in that it specifically addressed and required all of the defendants to produce, provide and bring forward the particular "proof(s)" (evidence) pertaining to each individual isue/claim and or cause of action in relationship to the petitioner/secured party-creditor, having to the U.S. Constitution, the Constitution of the state of California, as to personum and subject matter jurisdiction and other evidence suggesting there was/is any obligatory relationship by the petitioner and of other necessary "proof(s)" of claim as the original presentment(s)/cause(s) of action for the defendants to prove that there was no violation(s) of due process of law, no misapplication of statute, nor fraud and/or fraud by scienter, medical malpractice, no "intentional deliberate medical indifference," no pain and suffering, no cruel and unusual punishment, no defamation of character, slander/libel, falsification of medical documents . . .

Doc. 19 at 5-6.

C. Analysis

From the list of defendants coupled with Plaintiff's allegations containing language regarding medical treatment, it appears that Plaintiff is attempting to allege that Defendants were deliberately indifferent to Plaintiff's ...


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