United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding in forma pauperis and with
counsel in an action brought pursuant to 42 U.S.C. §
1983. On May 2, 2017, the court dismissed plaintiff's
first amended complaint (ECF No. 30) and granted leave to
file a second amended complaint. ECF No. 131. Plaintiff,
through his counsel, filed a second amended complaint on May
30, 2017. ECF No. 132. Defendants have requested that the
court screen the newly filed complaint pursuant to
§1915A. ECF Nos. 133 &134. The court will do so.
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 upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, in order to survive dismissal for failure
to state a claim, a complaint must contain more than “a
formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1216
(3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976),
as well as construe the pleading in the light most favorable
to the plaintiff and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
alleges that on or about August 17, 2012 and while
incarcerated at California Medical Facility (CMF), he was
given a shot of muscle relaxant by defendant John Doe. ECF
No. 132 at 3. The shot allegedly struck a sciatic nerve in
his buttocks and left his right leg paralyzed. Id.
Plaintiff alleges that his physicians misdiagnosed his injury
and failed to provide him with proper treatment. Id.
at 3-4. He claims that each of the named defendants violated
his Eighth Amendment rights by exhibiting deliberate
indifference toward his medical needs. Id. at 4.
After review of the complaint and its attached exhibits, the
court finds that plaintiff has stated a potentially
cognizable claim for deliberate indifference against
defendant John Doe. All other defendants, for the reasons
stated below, should be dismissed without leave to amend.
claims against Dhillon are too vague to proceed. His
allegations against this defendant are contained in a single
sentence which states only that “Dr. Dhillon refused to
provide Plaintiff with appropriate medication, a wheel chair,
or crutches when requested.” Id. at 4.
Plaintiff does not recount any appointment dates or
conversations he had with Dhillon regarding his care. He
fails to describe what “appropriate medication”
Dhillon declined to prescribe or how the medication that was
provided (if any) was inadequate. The lack of specificity in
the immediate complaint bears an unfortunate similarity to
the first amended complaint in this case (ECF No. 30), which
was dismissed for failure to state a claim (ECF No.131). In
the first amended complaint, plaintiff alleged that Dhillon
“denied me treatment that was needed (lay-ins,
medication, crutches, and a whhelchair (sic).” ECF No.
30 at 3. These allegations were dismissed after Dhillon filed
a motion to dismiss (ECF No. 124) and plaintiff declined to
oppose it (ECF No. 130). The court sees little difference, in
terms of clarity and specificity, between the claim in the
first amended complaint and the one that is now before it.
the exhibits attached to the complaint indicate that
plaintiff was provided with both medication and ambulatory
aides. In an institutional response to plaintiff's first
level appeal, dated November 30, 2012, defendant Rading noted
that Dhillon had given plaintiff pain medication, ordered
crutches, and referred him to another physician for further
evaluation. ECF No. 132-1 at 5. A health services request
dated August 19, 2012 and signed by Nurse “S.
Barker” states that plaintiff “actually came in
on a wheelchair today . . . .” Id. at 18.
Rading, Ditomas, and Clark
alleges that these defendants denied his 602 prison appeals.
He avers that Rading and Ditomas denied an appeal for
crutches. ECF No. 132 at 4. He alleges defendant Clark denied
an appeal requesting that proper medical treatment be
afforded. Id. Simple denial of a grievance, without
more, does not give rise to a viable constitutional claim.
See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (holding that “inmates lack a separate
constitutional entitlement to a specific prison grievance
procedure.”); see also Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999) (finding no viable claim where