Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gilchrist v. Joshua

United States District Court, S.D. California

May 16, 2017

MORRIS GILCHRIST, Booking # 16179894, Plaintiff,
v.
ALFRED JOSHUA; BERKMAN; MARTINEZ; TONG; SANTOS; EVANGELISTA; PREVOST; GORE, Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b)

          Hon. Larry Alan Burns United States District Judge

         I. Procedural History

         Plaintiff, Morris B. Gilchrist, is currently housed at the San Diego Central Jail (“SDCJ”). On March 9, 2017, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis (“IFP”). (ECF Nos. 1, 2.) Because Plaintiff's Motion to Proceed IFP complied with 28 U.S.C. § 1915(a)(2), the Court granted him leave to proceed without full prepayment of the civil filing fees required by 28 U.S.C. § 1914(a), but dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF No. 3.)

         However, Plaintiff was granted leave to file an amended complaint in order to correct the deficiencies of pleading identified in the Court's Order. (Id. at 8.) In addition, the Court informed Plaintiff that any “[d]efendants not named and any claims not re-alleged in the Amended Complaint will be considered waived.” (Id., citing S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012).)

         On May 4, 2017, Plaintiff filed his First Amended Complaint (“FAC”). (ECF No. 4.) In his FAC, Plaintiff no longer names Defendants Martinez, Tong, Santos, Evangelista, Prevost, and Gore in this action. (See FAC at 1-2.) Accordingly, Defendants Martinez, Tong, Santos, Evangelista, Prevost, and Gore are DISMISSED from this action. The Clerk of Court is directed to terminate these Defendants from the Court's docket.

         II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         As the Court previously informed Plaintiff, because he is currently incarcerated and is proceeding IFP, his complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

         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.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         A. 42 U.S.C. § 1983

         Title 42 U.S.C. § 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. Wyatt v. Cole, 504 U.S. 158, 161 (1992). To 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 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

         B. Plaintiff's Allegations

         Plaintiff is currently housed in the SDJC. (See FAC at 1.) Plaintiff claims that he suffers from “severely torn tendons” in his “right shoulder rotator cuff.” (Id. at 7.) Plaintiff further claims that Defendant Alfred Joshua, SDCJ Chief Medical Officer, and Defendant Berkman, SDCJ Supervising Medical Officer, “refused to provide” Plaintiff with “medical relief.” (Id. at 8.) Specifically, Plaintiff argues that his injury requires surgery and claims his “primary Veteran Administration Physician” indicated that his injury would “become even more ‘serious'” if left “untreated.” (Id. at 9.) Plaintiff acknowledges that the three physicians have “very different medical opinions.” (Id. at 10.)

         C. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.