United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING ACTION BE
DISMISSED FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF,
SUBJECTING PLAINTIFF TO STRIKE UNDER 28 U.S.C. § 1915(G)
(ECF NO. 35)
Timoteo Plancarte is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
1983. This matter was referred to the undersigned pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
filed his original complaint in this action on January 12,
2015. (ECF No. 1.) On March 27, 2015, before Plaintiff's
original complaint was screened, he filed a first amended
complaint. (ECF No. 12.)
December 17, 2015, the Court screened Plaintiff's
original complaint, and dismissed it for the failure to state
a cognizable claim upon which relief may be granted, with
leave to amend. (ECF No. 19.) The Court noted that
Plaintiff's original complaint was largely conclusory
with little factual allegations. (Id. at 2-3.)
Plaintiff's first amended complaint was not screened at
several extensions of time, on March 30, 2016, Plaintiff
filed a second amended complaint. (ECF No. 27.) In reviewing
Plaintiff's first and second amended complaints, the
Court determined that Plaintiff's first amended complaint
was an effort at providing sufficient factual allegations to
state a cognizable claim upon which relief may be granted.
Plaintiff's second amended complaint, however, was mainly
composed of legal arguments and conclusory assertions that
his rights have been violated, with no factual allegations.
Thus, in the interests of justice, the Court substantively
screened Plaintiff's first amended complaint on January
23, 2017. (ECF No. 28.) Plaintiff's first and second
amended complaints were then dismissed, with leave to amend,
for the continued failure to state a cognizable claim for
relief. Plaintiff was allowed thirty days to file a third
sought several extensions of time for the purpose of
gathering medical documentation to use in amending his
complaint, (ECF No. 29, 31, 33), each of which were
respectively granted in part, (ECF No. 30, 32, 34.)
Plaintiff's third amended complaint, filed June 2, 2017
(ECF No. 35), is now before the Court for screening.
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.
THIRD AMENDED COMPLAINT ALLEGATIONS
is a state inmate in the custody of the California Department
of Corrections and Rehabilitation (“CDCR”) at the
Correctional Training Facility in Soledad, California. The
events at issue here occurred while Plaintiff was
incarcerated at the Sierra Conservation Center
(“SCC”) at Jamestown, California. Plaintiff names
as defendants the following individuals: D. Jorge, RN; R.
Griggs, RN; Dr. St. Claire; Dr. J. Krpan; Dr. Shuddy; Dr.
Bangi; Dr. Kimn; J. Benak, PA-C; T. Day, PA-C; and CDCR
unknown medical staff.
alleges as follows: On June 31, 2009, while Plaintiff was
incarcerated at Duel Vocational Institution, he was
administered a mandatory Tuberculosis (“TB”)
test. On July 2, 2009, unknown medical staff read the test
results by observed Plaintiff's arm from behind a closed
cell door at approximately four feet away. This resulted in a
false positive reading, forcing Plaintiff to take medication
that made him sick and created a lump in the stomach area.
asserts that due to negligence and ill-trained medical staff,
he was denied further medical care and/or determination,
meaning further tests conducted by someone who is more
qualified to determine if Plaintiff is in fact infected with
TB, made with a more accurate and official reading.
Specifically, each of the defendants denied Plaintiff
adequate medical treatment. There were no further
determinations of Plaintiff contracting TB, nor were there
any notification thereof provided to Plaintiff. Plaintiff
concluded to medical staff that he did not have TB. Plaintiff
requested numerous times for further tests, such as x-rays,
urine samples, blood tests, but was denied. Plaintiff
contends that it was necessary to ...