United States District Court, E.D. California
Sims Plaintiff pro se
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, 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.
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. §1915(a). ECF Nos. 2, 7. 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
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison 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).
Statutory Screening of Prisoner Complaints
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,
malicious, or 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).
“is [legally] frivolous where 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).
“[A] judge may dismiss . . . claims which are
‘based on indisputably meritless legal theories' or
whose ‘factual contentions are clearly
baseless.'” Jackson v. Arizona, 885 F.2d
639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S.
at 327), superseded by statute on other grounds as stated
in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
basis. Id.; Franklin, 745 F.2d at 1227-28
Rule of Civil Procedure 8(a)(2) 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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “Failure to state a claim under § 1915A
incorporates the familiar standard applied in the context of
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). 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.”
Twombly, 550 U.S. at 555 (citations omitted).
“[T]he pleading must contain something more . . . than
. . . a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
Id. (alteration in original) (quoting 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1216 (3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hosp. Bldg. Co.
v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as
well as construe the pleading in the light most favorable to
the plaintiff and resolve all doubts in the plaintiff's
favor, Jenkins v. McKeithen, 395 U.S. 411, 421
(1969) (citations omitted).
first amended complaint, plaintiff alleges that defendants
Smith, Heatley, Horowitz, Hawkins, and Vaughn denied him
necessary medical care in violation of his Eighth Amendment
rights. ECF No. 6 at 3-11. He also claims that Smith and
Heatley failed to supervise the other defendants.
Id. at 4.
asserts that he suffers from numerous medical conditions that
defendants have failed to adequately treat. Id. at
5-11. Specifically, he alleges that all of the defendants
refused to submit pain intake information for a pain
management review and that Smith and Hawkins failed to
expedite review by the committee leading to a delay of over
one year and two months. Id. at 7-9. The allegations
against Smith, Heatley, and Hawkins revolve around intake
information completed on July 23, 2012, and a failure to
submit that took place on October 15, 2013. Id. at
8. Smith, Horowitz, Hawkins, and Vaughn also allegedly failed
to provide treatment to ease the pain of plaintiff's
recurrent migraines. Id. at 10.
further claims that Heatley knew about the pain he was
suffering from his gout and the change in his gout medication
due to his submission of Appeal No. 12043072 (id. at
10), while Smith allegedly ignored issues in plaintiff's
grievances and at some point, commented that “[m]aybe
we should just let [plaintiff] die” (id. at 6,
8, 10-11). Horowitz similarly told plaintiff that “[i]f
you want adequate medical care, you should not have come to
prison.” Id. at 6.
also makes claims that Smith had him sent to R.J. Donovan
instead of California Health Care Facility (CHCF), and that
after he asked Smith about his heart surgery, the surgery
ended up getting postponed and being done at a different
hospital that was not as capable. Id. at 7. He also
takes issue with Smith's statements contained in a
declaration filed in Sims v. Heatley (Sims
I), E.D. Cal. No. 2:14-cv-0393 KJN ...