Smith v. Silva

          SCREENING ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ORDER THAT THIS DISMISSAL SHALL COUNT AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g)

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Gary Smith (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to the jurisdiction of a United States Magistrate Judge on April 9, 2015. (ECF No. 5.) Currently before the Court is Plaintiff’s third amended complaint dated June 18, 2016 (ECF No. 21), filed in response to the Court’s order dismissing his second amended complaint with leave to amend, (ECF No. 19).

         II. Screening Requirement and Standard

         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).

         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. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (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, 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.

         Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2009). The Ninth Circuit has held that “a person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

         III. Plaintiff’s Third Amended Complaint Allegations

         Plaintiff is in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), and is currently incarcerated at Correctional Training Facility in Soledad, California. Plaintiff brings this action against CCI Matlock, CCII Silva, and Head Librarian Garcia, all employed by CDCR at the Sierra Conservation Center, a California state prison located in Tuolumne County, California.

         Plaintiff alleges that both Silva and Matlock knew he had an epileptic condition and seizure disorder and that he is not to be going up and down stairs, as stated on his chronos. About two weeks after March 20, 2010, Matlock met with Plaintiff and he instructed Plaintiff that he was to attend school upstairs or would be placed on C-Status. Plaintiff was left with no choice, and had to walk up and down two flights of stairs “for years going to school.” (ECF No. 21, p. 4.) He experienced mental anguish from feeling that he was bound to fall if he had a seizure. Plaintiff did not fall down the stairs going to and from school.

         In May 2010, Plaintiff wrote to Head Librarian Garcia explaining that he is epileptic and is not supposed to go up and down stairs. He asked to have books brought to him instead of forcing him to walk up the stairs to go to the library and check out books. That request was denied. On March 10, 2014, Plaintiff fell down a flight of stairs when leaving the library, causing significant pain to Plaintiff in the head, neck and shoulders and ongoing headaches. On March 21, 2014 Plaintiff put in an inmate request for an interview with Head Librarian Garcia and Plaintiff informed Garcia of his medical condition again, and informed her that he had fallen the last time he left the library. Garcia responded that Plaintiff was not allowed to send anyone else to check out books for him. On May 25 or 26, 2014, Garcia called Plaintiff in to talk with her and told her that she was given bad information, asked him to throw away the form and changed her mind, allowing Plaintiff to have someone bring him books.

         Plaintiff alleges that both CCII Silva and CCI Matlock “should never [have] put me in school. Instead of climbing up [and] down stairs they could have had school work brought to me.” (ECF No. 21, p. 4-5.) Plaintiff also alleges that both Silva and Matlock should have had him transferred. Plaintiff further alleges that he still has pain in his head, neck, and shoulders.

         Plaintiff states that he asserts claims for violations of his right to be free from cruel and unusual punishment, and for violation of equal protection of the laws. He seeks $150, 000 in damages as well as $4, 300 for his restitution, and to go to Soledad central single cell status. Plaintiff also seeks to ...