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Isabel Tubach v. Lahimore

December 9, 2011

ISABEL TUBACH,
PLAINTIFF,
v.
LAHIMORE, ET AL. DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER SCREENING THIRD AMENDED COMPLAINT, FINDING COGNIZABLE CLAIMS STATED AGAINST DEFENDANT GUZMAN FOR VIOLATION OF THE EIGHTH AMENDMENT; DISMISSING ALL OTHER CLAIMS AND DEFENDANTS; AND DENYING PLAINTIFF'S MOTIONS FOR TEMPORARY RESTRAINING ORDERS (Docs. 28, 29, 30, 31)

I. SCREENING ORDER

Plaintiff, Isabel Tubach, ("Plaintiff") is a state prisoner who is currently proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on May 21, 2010. (Doc. 1.) Plaintiff is a three-strikes filer under 28 U.S.C. § 1915(g).*fn1 In the Complaint, Plaintiff alleged that she had extremely high blood pressure, that the harassing circumstances under which she was housed cause her blood pressure to rise placing her at risk of a heart attack and/or stroke, and attached copies of medical records showing high blood pressure readings. (Id.) This was accepted as a showing that Plaintiff was "under imminent danger of serious physical injury" and, in accordance with 28 U.S.C. § 1915(g), Plaintiff's IFP application was granted. (Doc. 4.) However, the Complaint was dismissed for Plaintiff's failure to sign the pleading and Plaintiff was provided the standards for the claims that it appeared she intended to pursue. (Doc. 9.)

Plaintiff filed the First Amended Complaint on September 8, 2010. (Doc. 13.) On screening, the court found that Plaintiff failed to state any cognizable claims, failed to state allegations relating to her blood pressure, and that the vast majority of her allegations would not ever state cognizable claims even if amendment were allowed. (Doc. 16.) Consequently, the First Amended Complaint was dismissed with leave to amend solely claims that Plaintiff may pursue against Officer Gonzales, as that was the only aspect of her allegations that appeared amenable to amendment. (Id.) If Plaintiff chose to file a second amended complaint, she was directed to either make a showing of imminent danger of serious physical injury in her allegations, or to show cause in a separate, concurrently filed, writing as to why her IFP status should not be revoked. (Id.)

Plaintiff filed the Second Amended Complaint on January 11, 2011 and subsequently filed four motions to support and/or amend the complaint. (Docs. 20, 22, 24, 25, 26.) Upon screening, Plaintiff's motions to amend and/or supplement the Second Amended Complaint (Docs. 22, 24, 25, 26) were granted and the Second Amended Complaint was dismissed. Leave to amend was granted for the sole purpose of stating claims under the Eighth Amendment regarding both the care and treatment of Plaintiff's oral cancer and the conditions of her confinement which aggravate her heart condition. (Doc. 27, pp. 3-4, 15.)

Plaintiff filed the Third Amended Complaint (Doc. 28) and subsequently filed three motions seeking temporary restraining orders (Docs. 29, 30, 31).

II. THE THIRD AMENDED COMPLAINT -- PLAINTIFF'S ALLEGATIONS

Plaintiff complains of acts that occurred at Central California Women's Facility ("CCWF") in Chowchilla, California. Plaintiff names only Correctional Officer M. Guzman and Dr. Ezenwngo as Defendants in this action and seeks injunctive relief.

At best, Plaintiff's allegations are rambling and disjointed -- though this appears to be the best she is able to do as it is the style in which she has written each of her pleadings thus far.

The Court has done its best to ascertain the claims and prison personnel that Plaintiff is attempting to pursue. If Plaintiff's averments have not been correctly understood, she has only herself to blame. See McHenry v. Renne 84 F.3d 1172, 1180 (9th Cir. 1996).

Plaintiff alleges that Defendant Guzman incites her cell-mates to poison Plaintiff and to provoke her to have a heart attack (Doc. 28, 3rd AC, pp. 3, 5-8); stops Defendant Dr. Ezenwngo from treating her oral cancer (id., at pp. 3, 9); and stops and denies her an "ice-chrono" which he is aware is the only relief for the burning caused by Plaintiff's oral cancer (id., at pp. 3, 9).

Plaintiff states that she wants to charge Defendant Guzman with attempted murder and that Defendant Guzman has subjected her to cruel and unusual punishment. While Plaintiff does not specifically state which of her constitutional rights she believes Defendant Dr. Ezenwngo violated, the only claim that it appears Plaintiff could possibly intend to pursue against Defendant Dr. Ezenwngo is for deliberate indifference to her serious medical needs in violation of the Eight Amendment.

Plaintiff states a cognizable claim against Defendant Guzman for violation of her rights under the Eighth Amendment. However, her allegations do not state a cognizable claim against Dr. Ezenwngo. Accordingly, as discussed below, Plaintiff is allowed to proceed against Defendant Guzman for violation of her rights under the Eight Amendment. All other claims and Defendants are dismissed.

A. Pleading Requirements

1. Federal Rule of Civil Procedure 8(a)

As stated in the prior screening order[s], "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. Pro. 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. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. 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)).

"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). 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)(2).

Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal ...


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