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Billinger v. Yates

United States District Court, E.D. California

April 9, 2015

ALBERT BILLINGER, Plaintiff,
v.
YATES, Defendant.

SCREENING ORDER DISMISSING FIRST AMENDED COMPLAINT AND GRANTING LEAVE TO AMEND

BARBARA A. McAULIFFE, Magistrate Judge.

I. Screening Requirement and Standard

Plaintiff Albert Billinger ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 19, 2015, the Court dismissed Plaintiff's complaint with leave to amend within thirty days. Plaintiff's first amended complaint, filed on April 6, 2015, is currently before the Court for screening.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks 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)(ii).

A complaint must 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, 1964-65 (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).

To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Allegations

Plaintiff is currently housed at the California Health Care Facility in Stockton, California. Plaintiff has named Warden Yates, Chief Medical Officer at Pleasant Valley State Prison, Dr. Deap, Dr. Duenas, PA Fortune, and Dr. Sing as defendants.

As Plaintiff's allegations are scattered throughout the form pleading and attachments, the Court summarizes Plaintiff's claims. Plaintiff is confined to a wheelchair because of gun shots wounds. Prior to his transfer to Pleasant Valley State Prison, he was in good health. Plaintiff alleges that Defendants Warden Yates and the Chief Medical Officer knew of the existence of Valley Fever at Pleasant Valley State Prison prior to Plaintiff's transfer and they delayed in reacting to his serious medical need and failed to protect him from harm. Plaintiff alleges that Defendants Duenas, Deap, Sing and Fortune denied him adequate medical care for a serious medical need by leaving Plaintiff in pain for weeks and months at time. Plaintiff complains that he was denied pain medication for up to two weeks at time.

Plaintiff alleges that after he was sick for two or three months, Defendant finally gave him a blood test. Plaintiff asserts that he was so sick he had to be hospitalized for two years and given antibiotics. Plaintiff further alleges that he had bad bed sores, which required over 16 surgeries to close. Plaintiff also alleges that when it was determined that he had Valley Fever he had lost a lot of blood from sores and was in a lot of pain. It took Defendants a month to get him to an outside hospital where he was treated with an antibiotic for at least a year. Plaintiff lost 108 pounds and had over 20 to 25 surgeries. Plaintiff asserts that he is still on pain medication (morphine) and will be on medications for the rest of his life.

Plaintiff seeks compensatory and punitive damages

III. Discussion

A. Federal Rule of Civil Procedure 8

Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). 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." Iqbal, 556 U.S. at 678 (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 (quoting Twombly, 550 U.S. ...


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