United States District Court, E.D. California
ORDER DISMISSING ACTION FOR FAILURE TO STATE A
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
Screening Requirement and Standard
Asad Lewis (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action under 42 U.S.C. § 1983. Plaintiff consented to
magistrate judge jurisdiction. (ECF No. 5.) On January 17,
2017, the Court dismissed Plaintiff's complaint with
leave to amend. (ECF No. 6.) Plaintiff's first amended
complaint, filed on March 2, 2017, is currently before the
Court for screening. (ECF No. 9.)
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); Id. § 1915(e)(2)(B)(ii).
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)).
While a plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss
v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678 (quotation marks
omitted); Moss, 572 F.3d at 969.
is currently incarcerated at Deuel Vocational Institution in
Tracy, California. The events in the complaint are alleged to
have occurred while he was incarcerated at Pleasant Valley
State Prison in Coalinga, California. Plaintiff names the
following defendants in their individual and official
capacities: (1) Nurse Practitioner I. Ogbeuhi; (2) Sergeant
J. Benavides; (3) Chief Physician A. Ola; and (4) Licensed
Vocational Nurse R. Hanson.
alleges the following:
23, 2014, Plaintiff submitted a CDCR Form 1824 Reasonable
Modification or Accommodation Request in order to mitigate
his lower back pain. On the same date, Plaintiff complained
to Defendant I. Ogbeuhi that he had been and was still
suffering from severe lower back pain, and requested a back
brace. Defendant acknowledged his suffering and sent him to
therapy for lower back pain. However, even after Plaintiff
completed therapy, Defendant I. Ogbeuhi refused to issue
Plaintiff a back brace despite telling Plaintiff to complete
therapy first. Defendant I. Ogbeuhi became upset and hostile
to Plaintiff for requesting that Defendant issue a back brace
to lessen lower back pain.
thereafter, Plaintiff submitted another request for medical
attention. Plaintiff was seen by Defendant I. Ogbeuhi, who
was hostile when Plaintiff continued to complain of lower
back and needing a back brace. Defendant I. Ogbeuhi stated,
“We don't give back braces, what we do is give
pills!” As Plaintiff tried to inform Defendant I.
Ogbeuhi of his pain and need, Defendant I. Ogbeuhi exclaimed,
“I don't do that!” Defendant I. Ogbeuhi
eventually approved a back brace for Plaintiff, but never
four months later, Defendant I. Ogbeuhi sent Defendant
Benevides to Plaintiff's cell to collect the back brace
that was never issued. Defendant Benevides pressured
Plaintiff to produce a back brace and threatened to search
Plaintiff's cell. Defendant Benevides then ordered
Plaintiff to remain standing in the dayroom as he left for
the medical office. Plaintiff stood with a cane for
approximately 30 minutes until Defendant Benevides returned.
Plaintiff then was escorted to the medical office where a
back brace was issued.
September 29, 2014, Plaintiff alleges that Defendant R.
Hanson issued a back brace at the order of Defendant I.
Ogbeuhi. Defendant Hanson asked Plaintiff to sign a receipt.
As Plaintiff signed, Defendant Hanson stated, “This is
to prove we complied and accommodated you.” On
September 30, 2014, Defendant Hanson ...