United States District Court, E.D. California
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
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
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
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).
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).
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).
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).
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.
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.
allegations may be fairly summarized as follows:
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.
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
Tyson failed to process Plaintiff's administrative
grievance as required by institutional policy.
brings suit for deliberate indifference to his medical needs,
intentional infliction of physical and emotional distress,
and conspiracy. He seeks reconstructive surgery and damages.
Short and Plain Statement
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 ...