United States District Court, E.D. California
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. §
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
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).
Screening Requirement and Standard
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).
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).
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.
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).
Plaintiff’s Third Amended Complaint
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.
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.
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.
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.
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