United States District Court, E.D. California
EMERY L. FRANKLIN III, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
ORDER FINDING COGNIZABLE CLAIM ORDER FOR THIS CASE TO PROCEED AGAINST DEFENDANT UNITED STATES UNDER THE FEDERAL TORT CLAIMS ACT ORDER DISMISSING ALL OTHER DEFENDANTS AND CLAIMS FROM THIS ACTION FOR FAILURE TO STATE A CLAIM
GARY S. AUSTIN, Magistrate Judge.
Emery L. Franklin III ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis with this civil action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Plaintiff filed the Complaint commencing this action on January 31, 2011. (Doc. 1.)
On February 9, 2011, 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. 5.) 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 June 13, 2013, the Court dismissed Plaintiff's Complaint for failure to state a claim, with leave to amend. (Doc. 6.) On June 26, 2013, Plaintiff filed the First Amended Complaint. (Doc. 7.) On May 8, 2014, the court consolidated Plaintiff's case 1:11-cv-000470-GSA-PC (Franklin v. United States, et al.) with this case, based on common questions of fact, and ordered Plaintiff to file an amended complaint in the consolidated action. (Doc. 16.) On May 21, 2014, 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 prisoner in the custody of the federal Bureau of Prisons (BOP), presently incarcerated at the United States Penitentiary (USP)-Lompoc in Lompoc, California. The events at issue in the Complaint allegedly occurred at USP-Atwater in Atwater, California, when Plaintiff was incarcerated there. Plaintiff names as defendants Rufo Refendor, who was employed as a Physician's Assistant at USP-Atwater at the time of the events, and the United States. Plaintiff's factual allegations follow.
On April 19, 2010, while in custody of the BOP, Plaintiff had hemorrhoid surgery at Mercy Medical Center in Merced, California. Prior to discharge the doctor prescribed a stool softener, Pepcid, and Tylenol (non-aspirin). The next day Plaintiff was escorted to USP-Atwater and saw the on-duty Physician's Assistant, defendant Rufo Refendor. Defendant Refendor reviewed Plaintiff's hospital discharge records and said that he wasn't going to order the prescription. Plaintiff had spent five days in the hospital, had a colonoscopy and hemorrhoid surgery, and had a serious need for the medication.
On April 21, 2010 while defecating, Plaintiff lost a lot of blood and heard a loud plump in the water. He looked and the toilet water was dark red. Defendant Refendor's deliberate indifference caused Plaintiff agonizing pain, fear of dying, and loss of four pints/units of blood. ...