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Dwayne Giles v. Tom Felker

February 9, 2012

DWAYNE GILES, PLAINTIFF,
v.
TOM FELKER, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis, a motion to amend, and a motion for a court order directing the librarian to provide plaintiff with copies in excess of fifty pages. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceedin forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

II. Motion to Amend

Plaintiff is hereby informed that he may amend his complaint "once as a matter of course," within 21 days after serving it, 21 days after service of a responsive pleading, or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a). Here, plaintiff's original complaint has not yet been served, and he is therefore free to amend his complaint once, without leave of court. However, any amended complaint must be complete in itself, without reference to the original complaint. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading is superseded. Accordingly, plaintiff's motion to amend his complaint, is denied as unnecessary.

III. Motion for Copies

On July 26, 2011, plaintiff requested a court order directing the librarian to provide him with copies in excess of fifty pages. Dckt. No. 8. On the same day, he filed over 40 pages with the court, and on August 17, 2011, he filed nearly 100 pages with the court, most of which appear to be photocopies. Dckt. Nos. 7, 9. Plaintiff is currently under no obligation to file any additional copies in excess of fifty pages with the court and he appears to have been provided with whatever copies he felt he needed at the time he filed his July 26 request. Accordingly, plaintiff's motion for an order directing the librarian to make him copies is denied as unnecessary.

IV. Screening Order

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[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).

Furthermore, a claim upon which the court can grant relief has facial plausibility. 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." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states cognizable Eighth Amendment claims against defendants Felker and Wong, based on the allegations that the lockdowns they ordered deprived plaintiff of out-of-cell exercise for extended periods of time and harmed plaintiff's health. However, the complaint does not state a cognizable claim against any of the other named defendants, and those claims will therefore be dismissed with leave to amend.

In additional to Felker and Wong, plaintiff names Roche, Nachiondo, and three unknown members of the Medical Authorization Review Committee as defendants. Plaintiff alleges Roche is liable for the alleged mistakes of medical staff under his supervision. Plaintiff alleges that Nachiondo misdiagnosed plaintiff as ...


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