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Robinson v. Kitt

United States District Court, E.D. California

March 11, 2015

SAMUEL ROBINSON, Plaintiff,
v.
Dr. KITT, et al., Defendants.

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (DOC. 11) RESPONSE DUE WITHIN THIRTY DAYS

JENNIFER L. THURSTON, Magistrate Judge.

I. Background

Plaintiff, Samuel Robinson, filed the Complaint in this action on September 29, 2014. (Doc. 1.) It was screened and dismissed for failure to state a claim with leave to amend. (Doc. 6.) Plaintiff's First Amended Complaint is presently before the Court for screening. (Doc. 11.)

A. 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, malicious, 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); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

B. Summary of the First Amended Complaint

Plaintiff complains of acts that occurred at Wasco State Prison ("WSP"), where he is currently housed. Plaintiff names the following Defendants: Dr. Victor V. Kitt, Dr. Vi Jay R. Patel, Dr. A. Klang, and M. Songer, M.D. Plaintiff seeks monetary relief.

Plaintiff alleges that on August 2, 2012, Dr. Patel examined his nasal cavity. After several consultations, Dr. Victory V. Kitt performed surgery on his nostrils to remove polyps on May 10, 2013. After surgery, Plaintiff started experiencing double vision. Subsequently, Dr. Songer gave him an eye patch and told him that his vision "will correct itself, or the treatment team has protocol to fix said problem." (Doc. 11, pp. 3-4.) Now, after 18 months, Plaintiff has no vision in his right eye. Plaintiff alleges that the four doctors he has named as Defendants are part of the treatment team for his medical care and that they have "shown [] deliberate indifference to [his] serious medical needs by not following protocols from an surgery to just remove some polyps to [him] losing [his] vision in [his] right eye." ( Id., at p. 4.)

As discussed below, Plaintiff does not state any cognizable claims. Plaintiff may be able to amend to correct the deficiencies in his pleading and is being given the applicable standards based on his stated claims and one final opportunity to file an amended complaint.

C. Pleading Requirements

1. Federal Rule of Civil Procedure 8(a)

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

While "plaintiffs [now] face a higher burden of pleadings facts..., " Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, "the liberal pleading standard... applies only to a plaintiff's factual allegations, " Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled, " Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982), 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). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are merely consistent with' a defendant's liability" fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.

Plaintiff's First Amended Complaint complies with Rule 8. If he chooses to file a second amended complaint, Plaintiff should endeavor to make it as concise as possible. He should merely state which of his constitutional rights he ...


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