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Gray v. Lewis

United States District Court, E.D. California

May 26, 2017

RICKY GRAY, Plaintiff,
v.
J. LEWIS, et al., Defendants.

          SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Ricky Gray (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint, filed on May 27, 2016, is currently before the Court for screening. (Doc. 1). Plaintiff filed a consent to Magistrate Judge jurisdiction. (Doc. 11.)

         Screening Requirement

         The 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); 28 U.S.C. § 1915(e)(2)(B)(ii).

         A 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (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).

         To 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, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

         Summary of Plaintiff's Allegations

         Plaintiff is currently housed at Folsom State Prison. The events in the complaint are alleged to have occurred while Plaintiff was housed Pelican Bay State Prison, Corcoran State Prison, and at California Correctional Institution at Tehachapi. Plaintiff names the following defendants in the caption: (1) J. Lewis; (2) J. Bal; and (3) M. McLean, who are each employed at Pelican Bay State Prison. In the body of the complaint, Plaintiff also lists LVN Lambert, S. Shiesha, R. Litt, W. Walsh, LVN DeLuna, who are each employed at California Correctional Institution at Tehachapi. Plaintiff also lists LVN S. Singh, Ulit, T. Macias, J. Wang, who are each employed at Corcoran State Prison. Plaintiff also lists S. Kisenhoover who is employed at Pelican Bay State Prison.[1] (Doc. 1.)

         Plaintiff alleges: Plaintiff alleges he is under imminent danger for denial of medical treatment. Plaintiff has Hepatitis C and is being denied treatment by the above defendants. He was treated with interferon but another doctor told plaintiff to wait because of side effects. New medication was coming out and showed fewer side effects and had better results for blacks. When the new medication came out, the standards for qualifying for it rose and he did not qualify. Plaintiff has been feeling sick and fatigued and is high risk for liver damage and other injuries. Defendants told him he has to get sicker before they will treat him.

         Plaintiff alleges that H. Tate, S. Shiesha, R. Litt, W. Walsh violated plaintiff's First Amendment, Eighth Amendment, and Fourteenth Amendment rights because Plaintiff filed a staff complaint against H. Tate. As retaliatory action, H. Tate had defendant Luna give Plaintiff the wrong medication. Plaintiff noticed this and asked Defendant Luna to check with Defendant Tate. Defendant Tate canceled a pain medication of an inhaler. Plaintiff wrote a staff complaint asking to be assigned to another doctor. Defendants S. Shiesha, W. Walsh and L. Litt rejected it. Defendant Tate issued a rule violation report which was dismissed and he did not give Plaintiff any more pain medication as retaliation. Plaintiff filed another staff complaint and the same defendants rejected it.

         Plaintiff alleges S. Singh, Ulit, J. Wang, T. Macias, Cantu, McCabe violated First Amendment, Eighth Amendment, and Fourteenth Amendment rights. In 2014, LVN Singh would not crush Plaintiff's medications in front of him as was required under the Department Operations Manual and instead wrote a rule violation report that Plaintiff was “cheeking” his medication. As a result Ulit stopped his pain medication. Plaintiff was in pain for a year. Plaintiff alleges Ulit retaliated, which defendants Ulit, J.Wang, T. Macias, E. Cantu and C. McCabe allowed. All the defendants did not enforce the Department Operations Manual.

         Defendant Lambert violated Plaintiff's Eighth Amendment right by taking Plaintiff's personal glasses and not replacing them. Defendant Lambert and Defendant Kisenhoover would not let Plaintiff see an optometrist and he was without glasses for six months which affected his everyday life.

         As relief, Plaintiff seeks compensatory damages of $200, 000 against each defendant and punitive damages. (Doc. 1 at p. 4).

         Discussion

         1. ...


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