United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. He has filed an
application to proceed in forma pauperis pursuant to 28
U.S.C. § 1915, a request for appointment of counsel, and
a motion to amend.
Request to Proceed In Forma Pauperis
application makes the showing required by 28 U.S.C. §
1915(a)(1) and (2). Accordingly, by separate order, the court
directs the agency having custody of plaintiff to collect and
forward the appropriate monthly payments for the filing fee
as set forth in 28 U.S.C. § 1915(b)(1) and (2).
Screening Requirement and Standards
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint “is frivolous, malicious, or fails to
state a claim upon which relief may be granted, ” or
“seeks monetary relief from a defendant who is immune
from such relief.” Id. § 1915A(b).
se plaintiff, like other litigants, must satisfy the pleading
requirements of Rule 8(a) of the Federal Rules of Civil
Procedure. Rule 8(a)(2) “requires a complaint to
include a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing
Conley v. Gibson, 355 U.S. 41 (1957)). While the
complaint must comply with the “short and plaint
statement” requirements of Rule 8, its allegations must
also include the specificity required by Twombly and
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
avoid dismissal for failure to state a claim a complaint must
contain more than “naked assertions, ”
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555-557. In other words,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Iqbal, 556 U.S. at 678.
a claim upon which the court can grant relief must have
facial plausibility. Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S. 89
(2007), and construe the complaint in the light most
favorable to the plaintiff, see Scheuer v. Rhodes,
416 U.S. 232, 236 (1974).
court has reviewed plaintiff's amended complaint pursuant
to § 1915A and finds that the allegations are too vague
and conclusory to state a cognizable claim for
relief. According to the complaint, plaintiff
experienced a seizure on the E-yard on December 1, 2015,
causing him to fall and “bust” his head,
requiring four staples. Plaintiff alleges that defendant Dr.
Kauer responded by moving plaintiff to D-yard, which is a
medical yard, but failed to order protective pads for
plaintiff so that he would not hurt himself if he fell again.
ECF No. 6 at 4. Plaintiff also alleges that defendant nurse
practitioner Hashemi did not provide him with a protective
helmet and neck collar until March 9, 2016, and the when test
results revealed that plaintiff was not epileptic, defendant
Hashemi moved plaintiff to another medical yard, “not
wanting to figure out what [was] wrong with
[plaintiff].” Id. at 5. Lastly, plaintiff
claims that defendant nurse Galang told plaintiff's
mental health provider that plaintiff was “exaggerating
his symptoms” and “engaging in this behavior . .
. to avoid issues in [the] E-yard.” ECF No. 6 at 3.
Plaintiff purports to assert claims for medical malpractice,
defamation, and deliberate indifference to medical needs.
Under the applicable legal standards however, the complaint
must be dismissed for failure to state a claim upon which
relief may be granted. To proceed, plaintiff must file an
state a claim under § 1983, a plaintiff must allege: (1)
the violation of a federal constitutional or statutory right;
and (2) that the violation was committed by a person acting
under the color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002). An individual defendant is not
liable on a civil rights claim unless the facts establish the
defendant's personal involvement in the constitutional
deprivation or a causal connection between the
defendant's wrongful conduct and the alleged
constitutional deprivation. See Hansen v. Black, 885
F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588
F.2d 740, 743-44 (9th Cir. 1978).
succeed on an Eighth Amendment claim predicated on the denial
of medical care, a plaintiff must establish that he had a
serious medical need and that the defendant's response to
that need was deliberately indifferent. Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see
also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A
serious medical need exists if the failure to treat the
condition could result in further significant injury or the
unnecessary and wanton infliction of pain. Jett, 439
F.3d at 1096. Deliberate indifference may be shown by the
denial, delay or intentional interference with medical
treatment or by the way in which medical care is provided.
Hutchinson v. United States, 838 F.2d 390, 394 (9th
with deliberate indifference, a prison official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference. Farmer v. Brennan, 511 U.S. 825,
837 (1994). Thus, a defendant is liable if he knows that
plaintiff faces “a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures
to abate it.” Id. at 847. A physician need not
fail to treat an inmate altogether in order to violate that
inmate's Eighth Amendment rights. Ortiz v. City of
Imperial, 884 F.2d 1312, 1314 (9th Cir. ...