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Lewis v. Marciano

United States District Court, C.D. California

July 7, 2017

ORRY MARCIANO, et al., Defendants.





         On February 1, 2017, Gregory Gene Lewis (“Plaintiff”), a California state prisoner proceeding pro se, filed a civil complaint pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”); the Civil Rights Act, 42 U.S.C. § 1983; and the California Government Claims Act, Cal. Gov't Code §§ 905 et seq. (“CGCA”).[1] (Dkt. No. 1).

         Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portion thereof, before service of process if the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the Complaint is DISMISSED with leave to amend.[2]



         Plaintiff sues three Chuckawalla State Prison (“CSP”) employees: (1) Orry Marciano, a “physician assistant/primary care physician” (“Marciano”); (2) Ms. Beatres, a nurse (“Beatres”); and (3) Kimberly Seibel, the warden (“Seibel”). All Defendants are sued in both their individual and official capacities. (Complaint (“Compl.”) at 3).

         However, because the California Supreme Court has expressed a preference for the title “Government Claims Act, ” the Court will adopt that usage. See City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (2007).

         Plaintiff alleges that he has been disabled for the past twelve years following a gunshot wound to the leg. (Id. at 6). As a result of his injury, Plaintiff walks with a limp and needs to use a cane. (Id.). However, prison staff took Plaintiff's cane away from him and nurse Beatres “denied [Plaintiff's] disability” by refusing to return it. (Id. at 5).

         In 2016, CSP staff assigned Plaintiff to work as a kitchen “lineback, ” which requires him to carry heavy pans and trays and push heavy carts. (Id.). In light of his disability and age (he is sixty-three years old), this job is difficult for Plaintiff to perform. Clinic staff, correctional officers, and the cook supervisory staff “ignored the operational procedures” in assigning him this job. (Id.).

         At some unidentified time, Marciano, Plaintiff's primary health care provider, increased Plaintiff's dosage of Simvastatin from 20 to 40 milligrams, which Plaintiff believes caused him to suffer a mild stroke and heart failure.[3] (Id. at 5-6). Plaintiff collapsed and was taken to the hospital to receive treatment for the stroke. (Id. at 6). Following this incident, Plaintiff has been physically and mentally traumatized. His body has deteriorated because his medical needs have been “denied and delayed.” (Id.).

         The only allegation against Warden Seibel is that “she is not doing her responsibility to instruct or educate her staff to acknowledge inmates that are under the [ADA].” (Id. at 5).

         Plaintiff claims that Defendants' actions constituted “discrimination of [his] disability” under the ADA, citing Armstrong v. Davis.[4] (Id. at 5). Plaintiff also contends that Defendants violated his constitutional rights by subjecting him to “cruel and unusual punishment” and by “delaying” his “medical needs [sic].” (Id. at 5-6). In addition, Plaintiff asserts that Marciano is liable for “negligence [in] prescribing medicine that cause[d] mild stroke [sic] and heart failure . . . .” (Id.). Finally, Plaintiff alleges, without further explanation or citation, that Defendants violated Title 15 of the California Code of Regulations. (Id.). The Complaint does not specifically request monetary or injunctive relief. (See Id. at 5-6).



         Under 28 U.S.C. § 1915A(b), the Court must dismiss the Complaint due to pleading defects. However, the Court must grant a pro se litigant leave to amend his defective complaint unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted). For the reasons discussed below, it is not “absolutely clear” that at least some of the defects of Plaintiff's Complaint could not be cured by amendment. The Complaint is therefore DISMISSED with leave to amend.

         A. The Complaint Violates Federal Rule of Civil Procedure 8

         Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “‘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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)). Rule 8 may be violated when a pleading “says too little, ” and “when a pleading says too much.Knapp v. Hogan, 738 F.3d 1106, 1108 (9th Cir. 2013) (emphasis in original).

         Here, the Complaint violates Rule 8 because Plaintiff does not clearly identify the nature of each of the legal claims he is bringing, the specific facts giving rise to each claim, or the specific Defendant or Defendants against whom each claim is brought. Without more specific information, Defendants cannot respond to the Complaint. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.,637 F.3d 1047, 1058 (9th Cir. 2011) (a complaint violates Rule 8 if a defendant would have difficulty understanding and responding to the complaint). Moreover, because Plaintiff is not required to provide evidence supporting his claims at this stage of the litigation, the exhibits attached to ...

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