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Michael Harden v. John Doe

February 5, 2013

MICHAEL HARDEN,
PLAINTIFF,
v.
JOHN DOE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Stanley A. Boone i1eed4 United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM AND DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 7) ORDER DENYING PLAINTIFF'S MOTION FOR A CHANGE OF VENUE (ECF No. 16) THIRTY-DAY DEADLINE

I.

SCREENING REQUIREMENT Plaintiff Michael Harden is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the first amended complaint and motion for appointment of counsel, filed August 12, 2011, and a motion for a change of venue, filed August 15, 2012. (ECF Nos. 7, 16.)

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

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, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

II.

FIRST AMENDED COMPLAINT ALLEGATIONS

Plaintiff claims that while he was housed at Avenal State Prison Warden James D. Hartley, Associate Warden Mike Mayes, Chief Executive Officer Donald McElroy, Chief Physician Meet Boparai, Physician Assistant Michael Blackwell, an unidentified Health Care Manager, Appeals Coordinator Randy Blashaw, Doctor Emmanuel Conanan, Inmate Appeals Branch Chief D. Foston, Chief Medical Officer Ellen Greenman, Appeals Coordinator Harold Allison, an unidentified Appeals Analyst, an unidentified Appeals Examiner, and Janet Nay were deliberately indifferent in violation of the Eighth Amendment.

Plaintiff alleges that he suffers from serious injuries of his neck, back, wrist, and knees and has been denied medical accommodations or modifications to prevent further injuries or suffering. Plaintiff states he has been denied medical chronos for a lower tier, lower bunk, knee brace, cane, and soft shoes. Plaintiff references multiple exhibits in his first amended complaint that are not included as attachments.

For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief.

Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.

III.

LEGAL STANDARDS

A. Linkage Requirement

Under section 1983, Plaintiff is required to show that (1) each defendant acted under color of state law and (2) each defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is no respondeat superior liability ...


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