United States District Court, C.D. California
MEMORANDUM DECISION AND ORDER DISMISSING THIRD
AMENDED COMPLAINT WITH LEAVE TO AMEND
SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE.
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).
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
OF THE THIRD AMENDED COMPLAINT
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).
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).
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).
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).
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).
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. (Id. at
4). This transfer is “an acknowledgment of his previous
failure to act” on Plaintiff's behalf.
(Id. at 6).
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. (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