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Fregia v. Clair

United States District Court, E.D. California

May 10, 2017

MARK ANTHONY FREGIA, Plaintiff,
v.
J ST. CLAIR, et al., Defendants.

          ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 9) ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G) ORDER FOR CLERK TO CLOSE CASE

         Mark Fregia (“Plaintiff”) is proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on January 11, 2017. (ECF No. 1).

         On March 10, 2017, the Court screened Plaintiff's complaint, and dismissed it with leave to amend. (ECF No. 8).[1] On April 12, 2017, Plaintiff filed his First Amended Complaint, which is now before the Court for screening. Like the previous complaint, the First Amended Complaint alleges that defendant Medina conducted unreasonable searches by having Plaintiff lift his tongue after Plaintiff took his medication, and generally harassed Plaintiff.

         The Court finds that Plaintiff's First Amended Complaint fails to state a claim for a violation of the Constitution. Because the Court has previously provided Plaintiff with the applicable law and gave Plaintiff the opportunity to file this amended complaint, and because it appears that further amendment would be futile, the Court will dismiss this action for failure to state a claim upon which relief may be granted.

         I. SCREENING REQUIREMENT

         The 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 or malicious, ” that 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). “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).

         A complaint is required to 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. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. 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). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         II. SUMMARY OF ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

         Plaintiff's First Amended Complaint is similar to his prior complaint. He once again brings claims for “illegal cavity search” and “deliberate indifference harassment, ” and he again asks for $20, 000 in damages. Plaintiff also once again attaches several health care 602s, appeals, and responses, which deal with the policy of having licensed vocation nurses conduct searches on inmates and the conduct of defendant Medina.

         The First Amended Complaint includes additional details regarding the alleged harassment by defendant Medina. Plaintiff alleges that defendant Medina harassed Plaintiff and other inmates over a period of at least eighteen months. Part of the harassment involved making Plaintiff lift his tongue, even after defendant Medina had viewed the inside of Plaintiff's mouth and empty cup to ensure that Plaintiff had taken his medications. No other nurse forced inmates to lift their tongue after already verifying that they had not “cheeked” their pills.

         Plaintiff further alleges that defendant Medina's offensive memos, [2] barking out orders, verbal abuse, facial expressions, and body language are “grey areas” that could be considered harassment. Finally, Plaintiff alleges that defendant Medina has had an abnormal amount of prisoner complaints about her behavior.

         Plaintiff also included a new claim for “mental anguish over approx. 18 months.” According to Plaintiff, he suffered mental anguish because of defendant Medina's harassment, and it left a mental scar.

         III. ANALYSIS OF PLAINTIFF'S EXCESSIVE FORCE AND UNREASONABLE SEARCH CLAIMS

         A. Le ...


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