United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND (ECF NO. 7) THIRTY DAY DEADLINE
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE.
proceeds pro se and in forma pauperis in this civil rights
action brought pursuant to 42 U.S.C. § 1983.
Plaintiff's original complaint (ECF No. 1) was stricken
because it was submitted unsigned. (ECF No. 6.) Plaintiff
complied with the Court's Order to file a signed
complaint within thirty days. (ECF No. 7.) Plaintiff's
October 23, 2017 complaint is before the Court for screening.
(ECF No. 7.)
Court is required to screen complaints brought by inmates
seeking relief against a governmental entity or an 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. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that . .
. the action or appeal . . . fails to state a claim upon
which relief may be granted.” 28 U.S.C. §
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)),
and courts “are not required to indulge unwarranted
inferences, ” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). While factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
may bring § 1983 claims against individuals acting
“under color of state law.” See 42
U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii).
Under § 1983, Plaintiff must demonstrate that each
defendant personally participated in the deprivation of his
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). This requires the presentation of factual
allegations sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). 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, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
is currently incarcerated at California Substance Abuse
Treatment Facility (“CSATF”), in Corcoran,
California, where his claims arose. He brings this action
against California Correctional Health Care Services
(“CCHCS”); C. Cyer, CEO at CSATF; D. Roberts, a
registered nurse at CSATF; J. Lewis, Deputy Director of
CCHCS; John Does 1, 2, and 3, the doctors who examined
Plaintiff at CSATF; and E. Madina, a correctional officer at
allegations in the October 23, 2017 complaint (ECF No. 7) are
summarized as follows:
years before filing his complaint, Plaintiff was diagnosed
with torn cartilage in his knee, a torn rotator cuff, and
tendinitis in his shoulders, knees, and elbows. The symptoms
from these conditions were not so bad as to interfere with
Plaintiff's daily life, but they are not self-correcting
(and apparently they are progressively worsening), so on
January 3, 2017, Plaintiff sought follow up treatment.
this follow up, Plaintiff was given only a cursory
examination and rudimentary treatment. Medical staff did not
review medical records or reports of his prior rotator cuff
surgery. They denied his request for MRI of his shoulder,
knees, and elbows. These medical problems have now worsened
to the point that Plaintiff is in constant pain and surgery
is the only solution Additionally, because he filed a
grievance about his medical treatment, he was retaliated
against by being moved to a top bunk. When he refused to
move, prison staff issued a rules violation report
asserts three claims:
(1) “Cruel and unusual punishment, medical malpractice,
equal protection, due process of law” (ECF No. 7 at 4);
(2) Retaliation for being moved to a top bunk after he filed
a medical grievance and then being issued an RVR when he
refused to move (Id. at 5-6); and
(3) Medical Malpractice or deliberate indifference to a
serious medical need (Id. at 7).