Lewis v. Marciano

          MEMORANDUM DECISION AND ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND

          SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on February 1, 2017. Pending before the Court is Plaintiff's Third Amended Complaint. (“TAC, ” Dkt. No. 14). 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 it concludes that 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).

         The Third Amended Complaint is an improvement from earlier complaints. However, the TAC still fails to show how each Defendant's actions rose to the level of a constitutional violation. It is not clear that Plaintiff will be able to state a constitutional claim on these facts. However, because it is not “absolutely clear that the deficiencies of the complaint could not be cured by amendment, ” the Court will grant Plaintiff one final opportunity to state a claim. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (internal quotation marks omitted). Accordingly, for the reasons stated below, the TAC is dismissed, with leave to amend.^[1]

         II.

         ALLEGATIONS OF THE THIRD AMENDED COMPLAINT

         Plaintiff sues the following individuals at the Chuckawalla Valley State Prison (“CVSP”): (1) prison physician Orry Marciano; “Supervisor Cook I” staff members (2) Viengochia and (3) Verdusco; and “Supervisor II” staff members (4) Perez and (5) Prieta. (TAC at 1-2, 6). The TAC specifically alleges that Marciano is sued in his individual capacity, but makes no parallel allegations as to Viengochia, Verdusco, Perez and Prieta (collectively, the “Supervisor Defendants”). (Id. at 3).

         Plaintiff is a “high risk, ” elderly, obese inmate with a history of seizures and chronic knee pain from having been shot six times in the kneecap. (Id. at 4-5). One of his legs is shorter than the other, which causes him to limp. (Id. at 5). He uses a “medical devi[c]e cane” to help him walk. (Id. at 4).

         Upon his arrival at CVSP in December 2015, Plaintiff was assigned a job in the facility “C” yard dining hall kitchen, where he had to work “with heavy pots and pans.” (Id. at 2-3). Plaintiff was told that the failure to comply with direct orders would result in disciplinary infractions, the issuance of which would prevent him from earning good behavior credits. (Id. at 2).

         Plaintiff went to see Marciano about his work assignment and asked for his assistance. (Id. at 3). Marciano had Plaintiff's “entire medical file at his disposal.” (Id. at 6). Marciano knew that Plaintiff had just arrived from the California Rehabilitation Center, where he had been removed from kitchen duty after one day because of his “high risk medical factors.” (Id. at 2). Marciano also knew that Plaintiff was required to wear a “Mobility Impaired” lime green vest due to his physical limitations. (Id. at 2-3).

         However, instead of helping Plaintiff, Marciano kicked Plaintiff out, sent him back to work, and allowed “various staff members” to mistreat him. (Id. at 3-4). Viengochia, Verdusco, Perez and Prieta acted with “wanton disregard for Plaintiff's welfare” because they hid Plaintiff's cane and vest. (Id. at 6-7). The staff members' cruelty caused Plaintiff “pain and suffering, ” which triggered a mild stroke that required hospitalization. (Id. at 3).

         Even after his stroke, Plaintiff was sent back to work in the kitchen. (Id. at 4). He was finally transferred to an “education” job after enduring months of pain in his kitchen assignment. (Id. at 5). Marciano has recently placed Plaintiff on “high risk” status and is sending him to a medical facility.^[2] (Id. at 4). This transfer is “an acknowledgment of his previous failure to act” on Plaintiff's behalf. (Id. at 6).

         Plaintiff claims that Marciano was deliberately indifferent to his serious medical needs because Marciano failed to respond to his “cry for help” and “treat” him for four months.^[3] (Id. at 4-5). Marciano's failure to intervene when Plaintiff sought help regarding his work assignment also constituted cruel and unusual punishment proscribed by the Eighth Amendment. (Id. at 5). “Staff members” -- likely the Supervisor Defendants -- were “arbitrary capricious individuals who shock[ed] the conscientious objections [sic] of the crue[l] and unusual punishment, ” also in violation of Plaintiff's Eighth Amendment rights. (Id. at 3). Plaintiff states that he is seeking unspecified “monetary damages” against Marciano, (id. at 3), but does not affirmatively seek relief as to the Supervisor Defendants.

         III. ...