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Talley v. Patel

United States District Court, E.D. California

May 29, 2017

PERRY TALLEY, Plaintiff,
v.
PATEL, et al., Defendants.

          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)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         A. Background

         Plaintiff, 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.

         B. 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, 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. 2015).

         Section 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).

         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 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).

         C. Summary of the Complaint

         Plaintiff 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.

         Plaintiff 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.)

         On 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.)

         Dr. 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.)

         Plaintiff's 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.

         D. Pleading Requirements

         1. Federal Rule of Civil Procedure 8(a)

         “Rule 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.

         Violations 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) ...


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