United States District Court, E.D. California
SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE.
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.)
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).
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).
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.
of Plaintiff's Allegations
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. (Doc. 1.)
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.
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
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
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.
relief, Plaintiff seeks compensatory damages of $200, 000
against each defendant and punitive damages. (Doc. 1 at p.