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Free v. Peikar

United States District Court, E.D. California

April 24, 2017

PAUL FREE, Plaintiff,
v.
DR. NADER PEIKAR, et al., Defendants.

          ORDER (1) DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM; (2) DENYING MOTION FOR COURT'S ASSISTANCE; AND (3) DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF Nos. 1, 9) THIRTY-DAY DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a federal prisoner proceeding pro se in a civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff, who has paid the filing fee in full, has consented to the jurisdiction of a magistrate judge.

         Plaintiff's complaint is before the Court for screening. Also pending are Plaintiff's motion for Court's assistance to serve documents (ECF No. 9) and a motion for appointment of counsel (ECF No. 1).

         I. Screening Requirement

         The in forma pauperis statute provides, “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. § 1915(e)(2)(B)(ii).

         II. Pleading Standard

         Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

         To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

         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)). Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

         III. Plaintiff's Allegations

         At all times relevant to this action, Plaintiff was a federal inmate housed at United States Penitentiary in Atwater, California (“USP-Atwater”). He names as Defendants Dr. Nader Peikar, Lourdes Mettri, Lisa Fuentes-Arce, and Mr. Tyson.

         Plaintiff's allegations may be fairly summarized as follows:

         Since Plaintiff was first incarcerated in 1994, sixteen basal cell carcinomas (“BCC”) have been discovered on his body. Most of these occurred while Plaintiff was confined at USP-Atwater. Until 2014, they were diagnosed and treated in a timely manner. On January 10, 2014, an outside-treating physician diagnosed Plaintiff with a BCC on the lower right ear and recommended prompt treatment.

         Plaintiff's allegations against the medical Defendants are bare: Dr. Peikar was aware of the treating doctor's recommendation and knew that the cancer was painful and spreading, but he denied and delayed treatment for over two years. Mettri was also aware of the BCC lesion and the recommendation of the examining specialist for immediate treatment, but she failed to schedule the treatment in a timely manner. Fuentes-Arce was a member of the Utilization Committee that continually denied Plaintiff immediate treatment. As a result of these repeated delays and denials of treatment, Plaintiff suffered pain and disfiguration as the cancer spread. He finally received a more invasive, injurious, and disfiguring surgery over two years after his diagnosis. Plaintiff attaches to the complaint approximately 90 pages of medical and administrative records.

         Defendant Tyson failed to process Plaintiff's administrative grievance as required by institutional policy.

         Plaintiff brings suit for deliberate indifference to his medical needs, intentional infliction of physical and emotional distress, and conspiracy. He seeks reconstructive surgery and damages.

         IV. Discussion

         A. Short and Plain Statement

         Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Plaintiff's bare allegations in the complaint fail to meet this minimum requirement since he does not state specifically what, when, or how each Defendant violated Plaintiff's rights. Although Plaintiff includes 90-pages of attachments, the Court declines to peruse them to determine if they might contain facts in support of any of his claims. Even if the factual elements of a cause of action are present but are scattered throughout the complaint and are not organized into a “short and plain statement of the claim, ” dismissal for ...


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