United States District Court, E.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE
TO AMEND, FOR FAILURE TO ACTION FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF
is a former state prisoner proceeding pro se and in forma
pauperis pursuant to 42 U.S.C. § 1983. Plaintiff has
consented to magistrate judge jurisdiction pursuant to 28
U.S.C. § 636(c). Currently before the Court is
Plaintiff's second amended complaint, filed on March 22,
2016. (ECF No. 13.)
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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 (2009)(citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover,
Plaintiff must demonstrate that each defendant personally
participated in the deprivation of Plaintiff's rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012)(citations 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 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are 'merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
formerly incarcerated at Valley State Prison, brings this
action against Defendants Dr. Toor, Dr. Woodward, Dr.
Malakkla, an Dr. Shwe, physicians employed by the CDCR at
Valley State Prison.
March 22, 2016, second amended complaint, Plaintiff fails to
cure the defects identified by the Court in the order
dismissing the first amended complaint. The second amended
complaint is more vague than the first amended complaint. The
only allegation as to Dr. Toor is Plaintiff's conclusory
statement that Dr. Toor “violated my civil rights by
being deliberately indifferent by removing me from my then
pain medication which provided much relief for my injuries on
record.” (ECF No. 13 at p. 4.)
similarly fails to allege specific facts regarding Defendant
Woodward's conduct. Plaintiff asserts the conclusory
allegation that Defendant Woodward violated Plaintiff's
civil rights by “delaying, denying, and deterring from
properly diagnosing my injuries.” (Id.) In the
January 20, 2016, order dismissing the first amended
complaint, Plaintiff was specifically advised that he failed
to allege any facts indicating a complete refusal to treat
Plaintiff. There were no facts alleged indicating that a
medical professional diagnosed Plaintiff with further injury
as a result of a failure to treat Plaintiff. (ECF No. 10 at
5:13-14.) Plaintiff fails to correct this deficiency.
Dr. Malakkla, Plaintiff alleges that he violated
Plaintiff's rights by not enforcing the Plata
court order. Individual suits for injunctive and
equitable relief from alleged unconstitutional prison
conditions cannot be brought where there is a pending class
action suit involving the same subject matter. McNeil v.
Guthrie, 945 F.2d 1163, 1165 (9th Cir. 1991);
Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir.
1988) (en banc). “Individual members of the class and
other prisoners may assert any equitable or declaratory
claims they have, but they must do so by urging further
actions through the class representative and attorney,
including contempt proceedings, or by intervention in the
class action.” Id. Any asserted requests for
injunctive relief are therefore dismissed. If Plaintiff wants
to complaint about a perceived failure to comply with the
order in Plata, he may contact the plaintiff's
Dr. Shwe, Plaintiff alleges generally that he violated
Plaintiff's civil rights by failing to provide
“transcripts of medical documentation” in order
for the orthopedic specialist to properly diagnose him. (ECF
No. 13, p. 4.) Plaintiff also alleges that Dr. Shwe
“denied me any type of further treatment such as
submission of a chronic care evaluation to receive pain
medication and physical therapy due to my upcoming parole
release date being so short.” Plaintiff fails to allege
any facts indicating that Dr. Shwe knew of and disregarded an
objectively serious medical condition of Plaintiff's.
Further, it appears that Dr. Shwe's conduct occurred