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Plancarte v. D. Jorge

United States District Court, E.D. California

June 28, 2017

TIMOTEO PLANCARTE, Plaintiff,
v.
D. JORGE, et al., Defendants.

          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)

         Plaintiff 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.

         I. RELEVANT BACKGROUND

         Plaintiff 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.)

         On 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 that time.

         Following 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 amended complaint.

         Plaintiff 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.

         II. SCREENING REQUIREMENT

         The 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).

         A 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 Cir. 2002).

         Prisoners 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.

         III. THIRD AMENDED COMPLAINT ALLEGATIONS

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ...


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