United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS REGARDING
DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 13)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Ruben Rivera (“Plaintiff”), a state prisoner, is
proceeding pro se and in forma pauperis in this civil rights
action under 42 U.S.C. § 1983. Plaintiff initiated this
action on December 5, 2017. (ECF No. 1.) On December 28,
2017, the then-assigned magistrate judge screened
Plaintiff's complaint and granted him leave to amend.
(ECF No. 12.) Plaintiff's first amended complaint, filed
on January 16, 2018, is currently before the Court for
screening. (ECF No. 13.)
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, 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).
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss
v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is confined at Kern Valley State Prison (“KVSP”),
where the events in the complaint are alleged to have
occurred. Plaintiff names C. Relevante, a physician's
assistant at KVSP, as the sole defendant.
asserts a violation of the Eighth Amendment for deliberate
indifference to serious medical needs. In the amended
complaint, Plaintiff alleges as follows:
I'm linking “Physician Assistant” C.
Relevante to an affirmative act which caused me both physical
and mental harm due to his “deliberate
indifference” towards my serious medical need. On
2-6-17 C. Relevante performed an unsuccessfull [sic] surgical
procedure on my head in an attempt to remove a 2-inch cyst.
He was aware of the fact that prison does not have the
equiptment [sic] necessary to perform the surgical procedure
and that refferal [sic] to the hospital was necessary. He
caused me uneccesary [sic] and wanton infliction of pain.
Prior to the surgical procedure I advised C. Relevante to
review my previous medical records which clearly state that
the exact same surgical procedure had been unsuccessfully
done to me at CCI back in 8-21-2013 but was unsuccessfull
[sic] due to “too much bleeding” and lack of
equiptment [sic]. However, C. Relevante conciously [sic] and
maliciously insisted that referral to a hospital was not
necessary and did the procedure himself putting my life at
risk the surgical procedure once again turned out to be
unsuccessfull [sic]. I was left with scars, physical pain,
mental anguish and went through yet another unecessary [sic]
recovery process due to the medical malpractice, my eighth
amendment was violated.
(ECF No. 13 at 3-4.) Plaintiff seeks monetary damages, and
possible revocation of Defendant Relevante's license.
prisoner's claim of inadequate medical care does not
constitute cruel and unusual punishment in violation of the
Eighth Amendment unless the mistreatment rises to the level
of “deliberate indifference to serious medical
needs.” Jett v. Penner, 439 F.3d 1091, 1096
(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)). The two part test for deliberate
indifference requires Plaintiff to show (1) “a
‘serious medical need' by demonstrating that
failure to treat a prisoner's condition could result in
further significant injury or the ‘unnecessary ...