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Russell v. Toor

United States District Court, E.D. California

June 29, 2016

RODERICK BRYAN RUSSELL, Plaintiff,
v.
DR. K. TOOR, et al., Defendants.

          ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF

         Plaintiff 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).[1] Currently before the Court is Plaintiff's second amended complaint, filed on March 22, 2016. (ECF No. 13.)

         I.

         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 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).

         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 (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).

         Prisoners 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.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff, 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.

         In the 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.)

         Plaintiff 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.

         As to Dr. Malakkla, Plaintiff alleges that he violated Plaintiff's rights by not enforcing the Plata court order.[2] 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 class counsel.[3]

         As to 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 ...


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