United States District Court, E.D. California
JOSE SANTIAGO, Plaintiff, V. PATEL, et al., Defendants.
ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 17.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE-STRIKES" PROVISION SET FORTH IN 28 U.S.C. § 1915(g)
GARY S. AUSTIN, Magistrate Judge.
Jose Santiago ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 9, 2013. (Doc. 1.)
On January 22, 2013, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) in this action, and no other parties have made an appearance. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
On March 11, 2013, Plaintiff filed the First Amended Complaint. (Doc. 13.) On September 16, 2013, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 16.) On September 25, 2013, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (Doc. 17.)
II. SCREENING REQUIREMENT
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 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 is required to 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, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, 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). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal , 556 U.S. at 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff is a state prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR), incarcerated at Wasco State Prison (WSP) in Wasco, California, where the events at issue in the Second Amended Complaint allegedly occurred. Plaintiff names as the sole defendant Dr. V. Patel ("Defendant"). Defendant was an employee of the CDCR at WSP at the time of the events at issue. Plaintiff's factual allegations follow.
Plaintiff has a serious, permanent medical condition due to a colostomy. On December 7, 2011, Plaintiff arrived as WSP with 80 colostomy bags from his last institution. On December 19, 2011, Plaintiff saw Dr. Ramos who fully granted a 602 inmate grievance that Plaintiff had pending. As Plaintiff walked out, LVN Dickerson approached Dr. Ramos. The next day, Plaintiff's order for colostomy bags was changed and a new doctor, Dr. V. Patel, arrived. Dr. Patel refused to approve Plaintiff's order for colostomy bags. Plaintiff kept explaining that he has had a colostomy for 12 years and has daily needs for colostomy bags, but Dr. Patel refused to understand and told Plaintiff he was delusional. Dr. Patel was very inconsiderate and disrespectful to Plaintiff, kept comparing Plaintiff to inmates at the Correctional Training Facility, and told Plaintiff he thought his condition could be fixed. Plaintiff told Dr. Patel that he has seen other doctors who verified that his condition is permanent. Dr. Patel refused to listen, and Plaintiff had to beg for bags every other day. His 80 bags ran out. In April 2011, Plaintiff was in need of bags and was kicked out of the medical department by LVN Dickenson and disciplined. From that time, Plaintiff used trash bags instead of colostomy bags.
Plaintiff requests monetary damages to compensate him for three years of humiliation. Plaintiff also requests a court order to provide him with 60 colostomy bags and karaya rings each month.
Plaintiff informs the court in the Second Amended Complaint that a new doctor has resolved Plaintiff's need for colostomy bags, and since April 2013, ...