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Herrera v. Gill

United States District Court, E.D. California

March 6, 2015

ROBERTO HERRERA, Plaintiff,
v.
GILL, et al., Defendants.

FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

GARY S. AUSTIN, Magistrate Judge.

I. BACKGROUND

Roberto Herrera ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On September 9, 2013, Plaintiff filed the initial Complaint for this action. (Doc. 1.) On January 17, 2014, the court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 11.) On March 24, 2014, Plaintiff filed the First 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).

Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, none of which apply to § 1983 actions. Swierkeiwicz v. Sorema, N.A., 534 U.S. 506, 512 (2002). Under federal notice pleading, 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. The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is presently incarcerated at Corcoran State Prison (CSP) in Corcoran, California, where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Dr. Gill, LVN Ballesteros, CEO Teresa Macias, CMO Dr. Clark, CEO Connie Gipson, and numerous unnamed Doe Defendants (LVNs and other CSP staff). Plaintiff's factual allegations follow.

Plaintiff suffers from severe chronic pain as the result of a gunshot wound. Plaintiff takes prescribed pain medication which needs to be delivered to him three times a day - morning, noon, and evening. Because Plaintiff is in the Security Housing Unit (SHU), LVNs are responsible to deliver the medication to him.

On April 17, 2013, defendant LVN Ballesteros refused/failed to deliver Plaintiff's medication, leaving him to suffer in pain. On April 24, 2013, Doe Defendant LVN (#1) did the same. On June 7, 2013, Doe Defendant LVN (#2) did the same. On April 3, 2013, Doe Defendant LVN (#3) did the same. Many other LVNs have done the same.

On August 28, 2013, Plaintiff saw defendant Dr. Gill, primary care provider, and told the doctor that his prescribed medication was not effective for his pain. Dr. Gill refused to explore other medications, leaving Plaintiff to suffer in pain.

As acting CMO, defendant Dr. Clark is legally responsible for Corcoran Health Care LVNs not delivering Plaintiff's pain medication, and for the primary care provider refusing to explore other medications for Plaintiff, but Dr. Clark did nothing to stop these events from happening. As acting CEO, defendant T. Macias is also legally responsible and knew or should have known about these events, but did nothing to stop them from happening. Many other CDCR Health Care staff members are also personally responsible, but Plaintiff does not know their names.

Plaintiff also alleges that as an indigent prisoner, he was not provided with the required number of envelopes, denying him access to the courts. Defendant Connie Gipson is legally responsible because she is the custody CEO at CSP and knew or should have known that Plaintiff did not receive enough envelopes, but she did nothing to stop it from happening. Many other CDCR custody staff members, including CSP prison staff, floor staff, Captains, mail room staff, Lieutenants, acting Corcoran CEO, etc., are responsible for Plaintiff being denied access to the courts, but Plaintiff does not know their names.

On or about August 18, 2013, Plaintiff was moved from one building to another, and floor staff issued him a mattress in very bad condition, torn, old, lumpy, and flat, instead of a new mattress, depriving Plaintiff of sleep. As CEO, Connie Gipson is responsible and knew or should have known that Plaintiff was issued a bad mattress, but she did nothing to stop ...


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