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Moran v. Ola

United States District Court, E.D. California

May 31, 2017

NICOLAS MORAN, Plaintiff,
v.
A. OLA, et al., Defendants.

          ORDER DISMISSING SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR THE FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (ECF No. 16)

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF No. 6.)

         Currently before the Court is Plaintiff's second amended complaint, filed December 8, 2016. (ECF No. 16.)

         I. 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 or malicious, ” that “fail to state a claim on which relief may be granted, ” or that “seek monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations 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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         Nothwithstanding any filing fee, the district court must perform a preliminary screening and must dismiss a case if at any time the Court determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune diffendents); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim).

         II. BACKGROUND

         Plaintiff's original complaint was filed on September 24, 2014. (ECF No. 1.) The Court ruled on certain motions, and the originally-assigned magistrate judge then retired from the bench in August 2015, before the original complaint could be screened. (ECF No. 7.) The matter was then reassigned to the undersigned.

         On February 16, 2016, the Court screened Plaintiff's complaint and dismissed it for the failure to state a cognizable claim upon which relief could be granted, with leave to amend within thirty days. (ECF No. 9.) Following an extension of time, on April 15, 2016, Plaintiff filed a first amended complaint. (ECF No. 12.)

         On October 19, 2016, the Court dismissed Plaintiff's first amended complaint for failure to state a claim upon which relief may be granted, with leave to amend only his claim of false charges of hoarding medication. (ECF No. 13.) Following the partial granting of an extension of time, Plaintiff filed his second amended complaint on December 8, 2016. (ECF No. 16.)

         Plaintiff's second amended complaint is being screened in the context of this procedural history, including the limited basis upon which leave to amend was most recently granted.

         III. COMPLAINT ALLEGATIONS

         Plaintiff is currently in the custody of the California Department of Corrections (CDCR) at Avenal State Prison. Plaintiff's second amended complaint concerns claims against defendant correctional officials employed by the CDCR at Pleasant Valley State Prison. Plaintiff names the following individuals as Defendants: A. Ola, M.D.; R. Wilson, III, M.D.; Toni Clarke, Chief Supportive Executive; Donald McElroy, Chief Executive Officer; John Does, medical providers.

         Plaintiff alleges as follows: John Does, Defendant Wilson, and Defendant Ola infested Plaintiff's confidential medical file with inculpatory false reports which have been used by them and other doctors.

         On April 22, 2011, Defendant Wilson issued a progress note reflecting accusations that Plaintiff received an RVR 115 for hoarding medication. A copy of the note is attached, and states that Plaintiff recently received a 115 write up for hoarding medication in his mattress, a violation of the January 15, 2011 pain management agreement that he signed. On August 31, 2011, a John Doe issued a report reflecting that Plaintiff received an RVR 115 write up for hoarding medication. On January 24, 2012, Defendant Ola issued a progress note reporting the same. These reports have been used to the substantial risk of serious harm to Plaintiff's health and safety. The reports were made with the purpose or expectations that they will lead to the denial or intervention in Plaintiff's medical treatment. Defendant Ola's making of inaccurate medical reports also violates CDCR policy and procedures.

         On March 15, 2012, Plaintiff filed a 602 appeal complaining about his medical condition. During the process of his appeal, Plaintiff requested some of his medical reports to attach to his complaint. While he was getting them in order, he noticed that some of the medical reports reflected that he had received a Rules Violation Report (RVR 115) for hoarding medication. A ...


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