United States District Court, E.D. California
ORDER DISMISSING ACTION FOR FAILURE TO STATE A
L. BECK, UNITED STATES MAGISTRATE JUDGE
Frank Lee Dearwester ("Plaintiff") is a California
state prisoner proceeding pro se and in forma pauperis in
this action pursuant to 42 U.S.C. § 1983. Plaintiff
filed this action on February 26, 2015, and it was
transferred to this Court on March 16, 2015. Plaintiff's
original complaint was stricken because it was unsigned, and
he filed his First Amended Complaint ("FAC") on
June 9, 2015.
to Court order, Plaintiff filed a Second Amended Complaint on
May 2, 2016. Plaintiff names the California Department of
Corrections and Rehabilitation ("CDCR"), North Kern
State Prison ("NKSP") Warden Doe, NKSP, Quest
Diagnostics, NKSP doctors Odeluga, Shittu, Krzysiak and
Robles and Does 1-99 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 incarcerated at Corcoran State Prison. The
events at issue occurred while he was incarcerated at NKSP.
alleges that on August 1, 2013, he was processed through NKSP
Medical Diagnostics, where Doe employees collected his bodily
fluids for testing. The testing was motivated by the
Warden's policy, and performed under the direction and
supervision of Defendants Shittu and/or Krzysiak and/or
Robles. The test was performed on site by Doe employees of
August 20, 2013, he received a "Notification of
Diagnostic Test Results" indicating a positive HIV test
result. Plaintiff immediately began having heart palpitations
and psychological symptoms, including stress, anxiety,
claustrophobia, insomnia, depression and panic attacks.
attended a follow-up appointment on August 29, 2013, during
which the doctor offered no explanation or relief. Instead,
he ordered another HIV blood draw, which was taken on August
September 11, 2013, Plaintiff received test results which he
contends only caused further trauma. The results indicated
that Plaintiff was "being scheduled" and provided
"quasi-confirmation" of the prior positive test
result. ECF No. 30, at 2.
was seen by Defendant Krzysiak on October 9, 2013, but he did
nothing to alleviate his concerns. Instead, Defendant
Krzysiak only cited the negligence of unnamed employees,
stating that the results were confusing to him. Defendant
Krzysiak told Plaintiff that "they" must have mixed
his test results, or specimen, with that of someone else. ECF
No. 30, at 3. He suggested that Plaintiff receive another
test in six months.
states that he has undergone multiple HIV blood draws and has
not been notified of any positive results. He is not ...