United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and has requested
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. This proceeding was referred to this court by
Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff consented to proceed before the undersigned for all
purposes. See 28 U.S.C. § 636(c).
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's trust account.
These payments will be forwarded by the appropriate agency to
the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
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 upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous when it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“requires only ‘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 Conley v. Gibson,
355 U.S. 41, 47 (1957)). In order to survive dismissal for
failure to state a claim, a complaint must contain more than
“a formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. at 555. However, “[s]pecific
facts are not necessary; the statement [of facts] need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atlantic, 550 U.S. at 555, citations
and internal quotations marks omitted). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
claims that on several occasions, defendant Nurse Supervisor
Brandi Brown shared plaintiff's personal health care
information with her husband, defendant Captain Brown, and
the remaining named defendants, without first obtaining
plaintiff's authorization. On September 1, 2016, defendant
Brandi Brown had her husband, Captain Brown, take away
plaintiff's B1 clinic treatment card that allowed him to
exchange his portable oxygen tank. On September 8, 2016,
defendant Brandi Brown told Captain Brown to escort plaintiff
and his oxygen tank to the B1 medical clinic. Captain Brown
then told defendant Swan to escort plaintiff and his tank to
B1 medical clinic where he turned plaintiff over to defendant
Buckner, who told plaintiff to hand over the portable oxygen
tank to inmate worker Jackson. Plaintiff asked Buckner to see
the doctor's order requiring plaintiff to turn over his
oxygen tank. Buckner then ordered plaintiff to give the tank
to Jackson and to leave, which plaintiff did. Plaintiff
contends that at no time on either September 1 or 8, 2016,
was there an order requiring plaintiff to turn over his
portable oxygen tank. (ECF No. 1 at 8.) Plaintiff argues that
the actions of defendants Brandi Brown, Captain Brown, Swan,
Lesane, and Buckner demonstrate deliberate indifference to
his serious medical needs.
Eighth Amendment prohibits the infliction of “cruel and
unusual punishments.” U.S. Const. amend. VIII. The
unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment prohibited by the Eighth Amendment.
Whitley v. Albers, 475 U.S. 312, 319 (1986);
Ingraham v. Wright, 430 U.S. 651, 670 (1977);
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Neither accident nor negligence constitutes cruel and unusual
punishment, as “[i]t is obduracy and wantonness, not
inadvertence or error in good faith, that characterize the
conduct prohibited by the Cruel and Unusual Punishments
Clause.” Whitley, 475 U.S. at 319.
needed to show unnecessary and wanton infliction of pain
“varies according to the nature of the alleged
constitutional violation.” Hudson v.
McMillian, 503 U.S. 1, 5 (1992) (citing
Whitley, 475 U.S. at 320). In order to prevail on a
claim of cruel and unusual punishment, however, a prisoner
must allege and prove that objectively he suffered a
sufficiently serious deprivation and that subjectively prison
officials acted ...