United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS SECOND
AMENDED COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CLAIM
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
initial Complaint in this action complained of events that
occurred from roughly 2011 through 2014, while he was housed
at Pleasant Valley State Prison, when he contracted Valley
Fever for which he received inadequate medical care. (Doc.
1-2.) Plaintiff was provided the pleading requirements and
legal standards for his delineated claims and has twice been
given opportunity to amend his allegations. (Docs. 11, 21.)
Despite this, Plaintiff fails to state factual allegations
specific to his delineated claims and does not link any of
the individuals named as defendants to any factual
allegations in the Second Amended Complaint. (Doc. 25.)
Further, Plaintiff exceeded the scope of leave to amend which
was previously granted (Doc. 11, p. 10) by adding allegations
dating as far back as January 8, 2004, which are barred by
the statute of limitations (Doc. 25, p. 4). Accordingly, the
action should be DISMISSED with prejudice.
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,
malicious, 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);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is
dismissed on one of these three bases, a strike is imposed
per 28 U.S.C. § 1915(g). An inmate who has had three or
more prior actions or appeals dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
may be granted, and has not alleged imminent danger of
serious physical injury does not qualify to proceed in
forma pauperis. See 28 U.S.C. § 1915(g);
Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir.
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).
Summary of the Second Amended Complaint
complains of incidents that apparently occurred at PVSP,
though he is currently housed at the Correctional Training
Facility in Soledad, California. Plaintiff names Drs.
Igbinosa, Darren Bright, Paul Brazelton, Peter Lamb, Ifemoa
Ogbehi, and Luomg Nguyen as the defendants in this action and
seeks monetary damages.
first claim, for deliberate indifference to a known serious
risk under the Eighth Amendment, Plaintiff alleges that at
PVSP, though he was regularly exposed to wind blowing up
dust, he did not always receive a mask to wear, which caused
him to contract Valley Fever. On January 8, 2004, Plaintiff
was transferred to CTF. (Doc. 25, pp. 3-4.) In his second
claim, for deliberate indifference to his serious medical
condition, Plaintiff alleges that at CTF, he was not properly
diagnosed with Valley Fever and when it was diagnosed, he did
not receive proper medical attention. (Id., pp.
recommended that this action be dismissed with prejudice.
Plaintiff has exceeded leave to amend granted by adding a
claim that is clearly barred by the statute of limitations.
Further, despite repeated opportunity and direction,
Plaintiff fails to link any of the persons named as
defendants to his allegations.
Federal Rule of ...