United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED
COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON
EIGHTH AMENDMENT MEDICAL CLAIMS AGAINST DEFENDANTS PATEL,
DILEO, MORALES, JOSE, AND SANDOVAL (DOC. 1)
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
Perry Talley, is a prisoner in the custody of the California
Department of Corrections and Rehabilitation
(“CDCR”). Plaintiff is proceeding pro se
and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff has stated
cognizable claims under the Eighth Amendment against some of
the defendants and may be able to correct the deficiencies in
his pleading on other claims. Thus, he may either file a
first amended complaint correcting the deficiencies or advise
the Court that he is willing to proceed only on the claims
found cognizable herein.
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,
malicious, 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);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is
dismissed on one of these three bases, a strike is imposed
per 28 U.S.C. § 1915(g). An inmate who has had three or
more prior actions or appeals dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
may be granted, and has not alleged imminent danger of
serious physical injury does not qualify to proceed in
forma pauperis. See 28 U.S.C. § 1915(g);
Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir.
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.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). Section 1983 is not itself a
source of substantive rights, but merely provides a method
for vindicating federal rights conferred elsewhere.
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
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 the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda
Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
Summary of the Complaint
complains of acts that occurred while he was housed at Kern
Valley State Prison (“KVSP”). Plaintiff names Dr.
Ismail Patel, Dr. L. Dileo, CEO T. Kubicki, Warden Martin
Biter, Deputy Director J. Lewis, Correctional Officer M.
Morales, Sergeant Jose, and Lieutenant C. Sandoval as
defendants in this action. Plaintiff seeks monetary damages
and injunctive relief.
alleges that in March of 2010, while housed at the R.J.
Donovan Correctional Facility, he was seen by a podiatrist
who issued him a permanent chrono for orthopedic shoes and
shoe inserts. (Doc. 1, pp. 7-8, 11.) On April 22, 2010,
Plaintiff was transferred to KVSP. (Id., p. 8.)
Plaintiff alleges that on August 10, 2010, Dr. Patel signed a
chrono agreeing that Plaintiff needed orthopedic shoes and
inserts at KVSP. (Id., p. 11.)
September 30, 2014, Plaintiff was walking across the yard on
his way to an appointment at the medical clinic when C/O
Morales stopped Plaintiff and asked if he had a chrono for
the orthopedic shoes he was wearing. (Id., pp. 8-9.)
When Plaintiff showed C/O Morales his chrono, C/O Morales
became aggressive and belligerent and ordered Plaintiff to
remove his shoes. (Id.) Plaintiff began having
severe chest pains, fell to the ground, and asked C/O Morales
if he could go to the medical clinic because he thought he
was having a heart attack. (Id., p. 9.) C/O Morales
denied Plaintiff's request. (Id.) Sgt. Jose and
Lt. C. Sandoval walked up while Plaintiff was on the ground
and agreed with C/O Morales, even though Plaintiff showed
them his chrono. (Id.) They then forcibly removed
Plaintiff's shoes while he lay on the ground in
excruciating pain. (Id., p. 10.) Medical personnel
were summoned with a wheelchair and took Plaintiff to the
medical clinic. (Id.) Plaintiff was having a heart
attack. (Id.) C/O Morales thereafter wrote Plaintiff
up for delaying an officer and fabricating chest pains.
(Id., p. 10.) Plaintiff was found guilty even though
it was stipulated at the disciplinary hearing “that the
medical doctor would have testified that Plaintiff suffered
from a heart attack.” (Id.)
Patel refused to direct correctional staff to return
Plaintiff's orthopedic shoes and inserts. (Id.,
p. 11.) Plaintiff filed a health care appeal to obtain them.
(Id.) Dr. Dileo denied it at the first level; CEO
Kubicki denied it at the second level; and Dep. Dir. Lewis
denied it at the third level. (Id., pp. 11, 12.)
allegations state a cognizable claim under the Eighth
Amendment against C/O Morales, Sgt. Jose, Lt. Sandoval, Dr.
Patel and Dr. Dileo on which he should be allowed to proceed.
However, as discussed in greater detail below, he fails to
state any other cognizable claims against the other named
defendant, but is granted opportunity to amend as he may be
able to cure some of the defects in his pleading.
Federal Rule of Civil Procedure 8(a)
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions, ” none of which
applies to section 1983 actions. Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a).
A complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief .
. . .” Fed. R. Civ. Pro. 8(a). “Such a statement
must simply give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Swierkiewicz, 534 U.S. at 512.
of Rule 8, at both ends of the spectrum, warrant dismissal. A
violation occurs when a pleading says too little -- the
baseline threshold of factual and legal allegations required
was the central issue in the Iqbal line of cases.
See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937 (2009). The Rule is also violated, though, when a
pleading says too much. Cafasso, U.S. ex rel. v.
Gen. Dynamics C4 Sys., Inc.,637 F.3d 1047, 1058 (9th
Cir.2011) (“[W]e have never held -- and we know of no
authority supporting the proposition -- that a pleading may
be of unlimited length and opacity. Our cases instruct
otherwise.”) (citing cases); see also McHenry v.
Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) ...