United States District Court, E.D. California
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)
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.)
before the Court is Plaintiff's second amended complaint,
filed December 8, 2016. (ECF No. 16.)
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).
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
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.
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).
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
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.)
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.
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.
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
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.
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.
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 ...