UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 7, 2013
CLARENCE LEON DEWS, PLAINTIFF,
DR. CHEN, ET AL, DEFENDANTS.
The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
Clarence Leon Dews, a state prisoner appearing pro se and in forma pauperis, filed a civil rights action under 42 U.S.C. § 1983.*fn1 Dews is currently incarcerated at the Kern Valley State Prison. In this action Dews, a totally disabled person, has sued prison officials in their official and representative capacities and two California municipalities for deliberate indifference to serious medical needs in violation of the Eighth Amendment.*fn2
I. SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.*fn3 This 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."*fn4 Likewise, a prisoner must exhaust all administrative remedies as may be available,*fn5 irrespective of whether those administrative remedies provide for monetary relief.*fn6
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn7 "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."*fn8 Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal should be granted only where it appears beyond doubt that the plaintiff can plead no facts in support of his claim that would entitle him or her to relief.*fn9
This requires the presentation of factual allegations sufficient to
state a plausible claim for relief.*fn10 "[A]
complaint [that] pleads facts that are 'merely consistent with' a
defendant's liability . . . 'stops short of the line
between possibility and plausibility of entitlement to
relief.'"*fn11 Further, although a court must accept
as true all factual allegations contained in a complaint, a court need
not accept a plaintiff's legal conclusions as true.*fn12
"Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice."*fn13
II. GRAVAMEN OF COMPLAINT
In a somewhat disjointed, rambling Complaint, Dews raises several complaints: (1) on one occasion he was denied a shower as required under the Americans with Disabilities Act ("ADA");
(2) he is being denied appropriate medication, i.e., morphine, for his pain; (3) inability to see medical staff on a timely basis; (4) lack of mental health care; and (5) verbal abusive treatment by Dr. Chen.
Dews requests that: (1) he be provided immediate medical treatment; (2) Dr. Chen be dismissed; (3) a transfer to Atascadero State Hospital for treatment; (4) $5,000.00 in actual damages; and (5) $50,000.00 in punitive damages.
III. OTHER ACTIONS PENDING
Dews has three other actions under 42 U.S.C. § 1983 pending in this Court: Dews v. Kern Radiology Medical Group, Inc., 1:12-cv-00242-AWI-MJS (Dews I"); Dews v. County of Kern, 1:12-cv-00245-AWI-MJS ("Dews II"); and Dews v. State Water System, 1:12-cv-01398-RRB ("Dews III").*fn14
In Dews I, Dews has sued various officials of the North Kern County Prison for denial of necessary medical treatment for a torn rotator cuff. That action was dismissed during screening with leave to amend; however, in lieu of filing an amended complaint Dews has appealed from the dismissal.
In Dews II, Dews has sued various officials of the Wasco State Prison for use of excessive force and denial of necessary medical treatment. That action has not yet been screened.
In Dews III, Dews has sued various prison sued various California state entities and officials in their individual capacities for injunctive relief and damages caused by hisconsumption of the contaminated water over a period of several years. That action has also not yet been screened.
Attached to Dew's Complaint is a copy of a CDCR 602 Inmate/Parolee Appeal Form dated July 20, 2012, a month prior to the time this action was filed. Dews has failed to attach any documentation evidencing the processing of this appeal through the three levels of appeal provided under California law.*fn15 As noted above, a prerequisite to bringing an action under § 1983 is that the prisoner must have exhausted his administrative remedies.*fn16 It is plainly evident that, at the time Dews initiated this action, he not only had not exhausted his available administrative remedies, but could not have exhausted them. Accordingly, this Court must dismiss this action.
For the reasons set forth above, the Court hereby ORDERS
as follows: 1. The Complaint on file herein is DISMISSED without prejudice;
2. On or before June 10, 2013, Plaintiff may file an Amended Complaint; provided however, that Plaintiff must affirmatively plead that either (1) he has exhausted his administrative remedies or (2) he is excused from such exhaustion under applicable California law; and
3. If Plaintiff has not filed an Amended Complaint by June 10, 2013, or such further time as the Court may grant, the Clerk of the Court is directed to enter a judgment of dismissal without further order of the Court.