United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE
TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF
(ECF No. 7) THIRTY-DAY DEADLINE
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. 5.)
before the Court for screening is Plaintiff's first
amended complaint, filed October 24, 2016. (ECF No. 7.)
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.
is currently in the custody of the California Department of
Corrections and Rehabilitation (“CDCR”) at the
California Correctional Institution in Tehachapi, California
(“CCI”) where the events at issue in this action
occurred. Plaintiff names as defendants the following
individuals: (1) U. Baniga, Chief Physician and Surgeon at
CCI; S. Shiesha, Chief Medical Executive at CCI; and (3) J.
Lewis, Policy & Risk Management Services - Health Care,
for the CDCR. Plaintiff alleges the following:
about 2012, Plaintiff injured his back and was prescribed
medications that damages the liver. Plaintiff has been living
with Hepatitis C for over 15 years. In December 2015,
Plaintiff met with his health care provider and requested
further tests and treatment, and that request was denied.
Plaintiff filed an inmate appeal to the highest level, and
is a chronic care inmate with Hepatitis C infection.
Defendant Baniga was acting under color of law when he denied
Plaintiff further testing and treatment for Hepatitis C.
Defendant Baniga showed deliberate indifference to
Plaintiff's medical needs by not providing proper medical
care, by not ordering blood tests and a liver scan to
determine what stage the virus was in, and provide treatment.
Defendant Baniga's deliberate indifference to
Plaintiff's medical needs violates Plaintiff's Eighth
Amendment rights and Fifth Amendment rights to due process.
Shiesha was acting under color of law by denying Plaintiff
further testing and treatment for Hepatitis C. Defendant
Shiesha reviews medical complaints at the second level, and
denied Plaintiff's request for treatment, showing
deliberate indifference for Plaintiff's medical needs.
Defendant Shiesha did not provide proper medical care by
failing to order blood tests and liver scans to determine
what stage the virus is in, and provide treatment. Defendant
Shiesha violated Plaintiff's Eighth Amendment rights and
Fifth Amendment rights to due process.
already had a blood test. However, to determine what
treatment is required for Hepatitis C, a blood test is done
for HIV, and then a liver scan is done. This is what
Plaintiff is asserting that the defendants ...