United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
(ECF No. 9) ORDER DENYING REQUEST FOR APPOINTMENT OF
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE
Jose Valdez (“Plaintiff”), a former Stanislaus
County Jail inmate, proceeds pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
On May 10, 2017, the Court dismissed Plaintiff's
complaint with leave to amend. (ECF No. 7.) Plaintiff's
first amended complaint, filed on June 8, 2017, is currently
before the Court for screening. (ECF No. 9.)
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks 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)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
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, 129 S.Ct. at 1949 (quotation marks omitted); Moss
v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
allegations concern events that transpired while he was
detained in the Stanislaus County Jail. Plaintiff names the
following defendants: (1) Sheriff Deputy G. Beard; (2)
Licensed Vocational Nurse (“LVN”) Lenette; and
(3) LVN Francesca.
alleges: On June 5, 2015, while serving a prison sentence of
6 years, 8 months in the Stanislaus County Jail, Plaintiff
alleges that he was struck by a Rapid Containment Baton (RCB)
twice, on the back of his left arm and left thumb joint, by
Deputy Beard. Plaintiff's left thumb joint was fractured.
Plaintiff contends that although he was fighting with another
inmate, he did not deserve to be struck with the RCB and have
his joint fractured. Plaintiff further contends that Deputy
Beard had other options “of much lesser force”
available, including a taser gun and mace can, to subdue the
mutual combat. (ECF No. 9 at p. 7.) Plaintiff asserts that
the force used was unnecessary to stop a simple fist fight,
where neither of the involved inmates was in real danger of
serious injury or death.
same date, Defendant Lenette examined Plaintiff for injuries
caused by the strikes of the RCB. When Defendant Lenette
arrived to examine Plaintiff, she knew that he had just been
struck by the RCB and had been in a fight. Plaintiff showed
Defendant Lenette two tennis-ball-sized distensions at his
left back arm and at his left thumb joint, and complained
that they were extremely painful. Defendant Lenette
reportedly dismissed Plaintiff's assertions, stating
“Nothing is broken, in a few days you'll be
fine.” (Id. at p. 12.) Plaintiff alleges that
Defendant Lenette missed that his joint was fractured and
that he needed an x-ray. Plaintiff further alleges that
Defendant Lenette claimed that nothing was broken based only
on a cursory visual assessment. Plaintiff contends that
Defendant Lenette medically cleared him, despite the medical
necessity of an x-ray, and his joint now has a protuberance
the size of walnut.
hours after Plaintiff was medically cleared by Defendant
Lenette, Defendant Francesca examined Plaintiff before he was
rehoused in the E Unit. Defendant Francesca examined and
cleared Plaintiff while in the hallway area outside of the E
Unit. When Plaintiff complained to Defendant Francesca in the
same way that he complained to Defendant Lenette, Defendant
Francesca said, “You shouldn't of [sic] been
fighting, you did it [the RGB strikes] to yourself, so you
deal with it.” (Id. at p. 17.)
suffered in his cell for about a week, taking Motrin twice
daily for a pre-existing toothache. On June 12, 2015,
Plaintiff was examined by Defendant Francesca, during which
Plaintiff convinced her to order an x-ray. Although Defendant
Francesca ordered an x-ray, she denied Plaintiff anything
stronger than Motrin for his pain.
19, 2015, Plaintiff's joint was x-rayed. After a week
without follow-up, Plaintiff initiated another medical
examination. On June 27, 2015, Defendant Francesca explained
that the x-ray showed his joint was not broken. Although
Plaintiff showed her the distension at the joint, Defendant
Francesca claimed that it was simply “soft tissue and
bruising which would eventually get better.”
(Id. at p. 18.) Plaintiff believed her professional
judgment, but his joint size and pain did not reduce entirely
after a few weeks, which prompted him to initiate another
September 7, 2015, Plaintiff pressed Defendant Francesca for
answers that would explain why his joint was still in such a
state. Defendant Francesca indicated that nothing ...