United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF
FIRST AMENDED COMPLAINT WITH PREJUDICE THIRTY-DAY
L. BECK UNITED STATES MAGISTRATE JUDGE.
Brian D. Williams ("Plaintiff") is a state prisoner
proceeding pro se and in forma pauperis in this civil action
pursuant to 42 U.S.C. § 1983. Plaintiff filed this
action on August 11, 2014. On July 17, 2015, the Court
screened the complaint and determined that Plaintiff failed
to state a claim for relief. Plaintiff was granted leave to
file an amended complaint. On August 7, 2015, Plaintiff filed
a First Amended Complaint. He names Registered Nurses C. Tan
and G. Newton, and Medical Doctors Roselle Branch, Angelica
Duenas, and G. Kalisher as Defendants.
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. §
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,
129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. 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.'" Id. (quoting Twombly, 550
U.S. at 555). While factual allegations are accepted as true,
legal conclusions are not. Id.
1983 provides a cause of action for the violation of
Plaintiff's constitutional or other federal rights by
persons acting under color of state law. Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long
v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006); Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). Plaintiff's allegations must link the actions
or omissions of each named defendant to a violation of his
rights; there is no respondeat superior liability under
section 1983. Iqbal, 556 U.S. at 676-77; Simmons
v. Navajo County, Ariz., 609 F.3d 1011, 1020-21
(9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d
1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
Plaintiff must present factual allegations sufficient 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.
Iqbal, 556 U.S. at 678; Moss, 572 F.3d at
SUMMARY OF PLAINTIFF'S ALLEGATIONS
is currently housed at California Correctional Institution
("CCI") at Tehachapi, California. The events giving
rise to this action took place while Plaintiff was housed at
CCI and Correctional Training Facility ("CTF").
alleges the following. On May 29, 2013, Defendant Tan
examined Plaintiff and noted skin lesions, redness, and skin
tags around the anal area. She failed to diagnose Plaintiff
with having anal warts and did not refer him to a physician.
Plaintiff requested to be seen again. On June 20, 2013, a
nurse referred Plaintiff to Defendant Duenas who assessed
Plaintiff's medical condition as anal warts. Defendant
Duenas referred Plaintiff to a specialist using the routine
14 calendar day waiting list. Plaintiff complains that Duenas
should have referred him for urgent 24-hour care. On July 10,
2013, a specialist recommended laser surgery for the removal
of anal warts. The specialist failed to place him on the
schedule for surgery. On August 6, 2013, Defendant Duenas
placed Plaintiff on the waiting list for surgery because he
wasn't on the list.
September 4, 2013, Plaintiff was transferred to CTF. On
September 23, 2013, Plaintiff's 7362 form was received in
CTF concerning removal of warts. On October 14, 2013,
Defendant Branch examined Plaintiff concerning removal of
anal warts. Defendant Branch scheduled Plaintiff for
cryotherapy procedure. On October 30, 2013, Plaintiff's
CDC-602 was received by Defendant Newton where it was
partially granted for laser surgery of genital warts. The 602
was completed on January 28, 2014. On January 10, 2014,
Plaintiff went to NMC Medical Facility, where Dr. Palmer
scheduled Plaintiff for laser removal of genital warts. On
February 6, 2014, the surgery was completed. On February 7,
2014, Defendant Kalisher prescribed 600mg of Motrin when
Tylenol 3 was recommended.
seeks compensatory damages in the amount of $2, 000, 000.00
and for CDCR to pay all future medical bills.
Eighth Amendment's prohibition against cruel and unusual
punishment protects prisoners not only from inhumane methods
of punishment but also from inhumane conditions of
confinement. Morgan v. Morgensen, 465 F.3d 1041,
1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511
U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v.
Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981))
(quotation marks omitted). While conditions of confinement
may be, and often are, restrictive and harsh, they must not
involve the wanton and unnecessary infliction of pain.
Morgan, 465 F.3d at 1045 (citing Rhodes,
452 U.S. at 347) (quotation marks omitted).
officials have a duty to ensure that prisoners are provided
adequate shelter, food, clothing, sanitation, medical care,
and personal safety, Johnson v. Lewis, 217 F.3d 726,
731 (9th Cir. 2000) (quotation marks and citations omitted),
but not every injury that a prisoner sustains while in prison
represents a constitutional violation, Morgan, 465
F.3d at 1045 (quotation marks omitted). To maintain an Eighth
Amendment claim, inmates must show deliberate indifference to
a substantial risk of harm to their health or safety.
E.g., Farmer, 511 U.S. at 847; Thomas
v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010);