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Michael Thomas, Sr v. Dr. Green

March 27, 2013

MICHAEL THOMAS, SR.,
PLAINTIFF,
v.
DR. GREEN, ET AL.,
DEFENDANTS.



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

SECOND SCREENING ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT (Doc. 9)

Second Screening Order

I. Screening Requirement and Standard

Plaintiff Michael Thomas, Sr., a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 10, 2012. On October 3, 2012, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim. Plaintiff filed an amended complaint on October 26, 2012.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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).

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, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff's claims must be facially plausible to survive screening, 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 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Discussion

Plaintiff is currently incarcerated at California Medical Facility in Vacaville, and he brings this action against Mercy Hospital officers, doctors, and head nurse Pitts; and Doctor Green, Doctor Chokatos, and Ms. Hansom at Pleasant Valley State Prison (PVSP). Plaintiff may also be attempting to sue the California Department of Corrections and Rehabilitation (CDCR). Plaintiff's claims arise out of an incident at Mercy Hospital in which he was beaten by officers and from the failure to attend to his medical needs and transfer him out of PVSP, which is in an area endemic for Valley Fever.

A. Claim Against CDCR

Although it is not entirely clear if CDCR is a named defendant, any claims against CDCR are barred by the Eleventh Amendment. Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010); Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Therefore, to the extent Plaintiff intended to name CDCR as a party, it is dismissed from the action, with prejudice, for failure to state a claim.

B. Claim Arising From Events at Mercy Hospital

Although Plaintiff's allegations are somewhat vague and disjointed, between his allegations and exhibits, the Court is able to ascertain that Plaintiff claims he was beaten by officers at Mercy Hospital for throwing a tray. This claim, however, is being litigated in case number 1:11-cv-01140-DLB Thomas v. Mercy Hospital of Bakersfield and it may neither be simultaneously litigated nor re-litigated in this case. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051-52 (9th Cir. 2005). Accordingly, Plaintiff's claim arising out of ...


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