United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983, seeks leave to proceed
in forma pauperis (“IFP”). ECF No. 7. He also
requests leave to file an oversized complaint. ECF No. 2.
to Proceed In Forma Pauperis
IFP application makes the showing required by 28 U.S.C.
§ 1915(a)(1) and (2). Accordingly, by separate order,
the court directs the agency having custody of plaintiff to
collect and forward the appropriate monthly payments for the
filing fee as set forth in 28 U.S.C. § 1915(b)(1) and
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint “is frivolous, malicious, or fails to
state a claim upon which relief may be granted, ” or
“seeks monetary relief from a defendant who is immune
from such relief.” Id. § 1915A(b).
se plaintiff, like other litigants, must satisfy the pleading
requirements of Rule 8(a) of the Federal Rules of Civil
Procedure. Rule 8(a)(2) “requires a complaint to
include 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, 554, 562-563 (2007) (citing
Conley v. Gibson, 355 U.S. 41 (1957)). While the
complaint must comply with the “short and plaint
statement” requirements of Rule 8, its allegations must
also include the specificity required by Twombly and
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
avoid dismissal for failure to state a claim a complaint must
contain more than “naked assertions, ”
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555-557. In other words,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Iqbal, 556 U.S. at 678.
a claim upon which the court can grant relief must have
facial plausibility. 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.” Iqbal, 556 U.S. at 678.
When considering whether a complaint states a claim upon
which relief can be granted, the court must accept the
allegations as true, Erickson v. Pardus, 551 U.S. 89
(2007), and construe the complaint in the light most
favorable to the plaintiff, see Scheuer v. Rhodes,
416 U.S. 232, 236 (1974).
to the complaint, plaintiff has been forced to go through the
“low dose radiation scanner and force[d] to stand in
line” near the scanner, which is used eighty or more
times a day. ECF No. 1 at 13. Inmates with qualifying health
concerns such as pregnancies or pacemakers have the right to
refuse being scanned, as x-rays are known to cause tissue
damage. Id. at 6, 9, 11. Plaintiff claims that he
too should have the right to refuse scans because he has
glaucoma, and the “low dose scanner will affect [his]
optic nerve cells leading to more tissue damage.”
Id. at 7, 12. He alleges that defendants have shown
deliberate indifference to his serious medical needs by
exposing him to “low and high dose[s] of radiation,
posing [an] unreasonable risk of harm to him now and his
future health.” Id. at 7. He also claims his
glaucoma is not being properly treated and wants to be
prescribed cannabis. Id. at 23.
allegations lack sufficient detail to establish an Eighth
Amendment deliberate indifference to medical needs claim. To
act with deliberate indifference, a prison official must both
be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must
also draw the inference. Farmer v. Brennan, 511 U.S.
825, 837 (1994). Thus, a defendant is liable if he knows that
plaintiff faces “a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures
to abate it.” Id. at 847.
does not allege the frequency with which he was required to
be scanned. Nor does he allege how often or how close he was
to the scanner when standing in line or otherwise
“near” it. Absent such allegations, the court
cannot determine whether plaintiff was subjected to a
substantial risk of serious harm for purposes of an Eighth
Amendment claim. See Walker v. Ponte, No. 14 Civ.
8507 (ER), 2016 U.S. Dist. LEXIS 110062, at *17 (S.D.N.Y.
Aug. 18, 2016) (“[T]he frequency of screenings is
material to a claim of future injury as a result of radiation
exposure from RadPro screenings.”). Moreover,
“while exposure to any amount of radiation poses some
risk of harm-society chooses to, and indeed must, tolerate
some level of radiation exposure.” Middleton v.
City of New York (In re RadPro SecurPass Scanner Cases),
No. 13-CV-6095 (CS), 2014 U.S. Dist. LEXIS 113616, at *13-14
(S.D.N.Y. Aug. 13, 2014) (holding that five to ten RadPro
SecurPass screenings did not put plaintiff at risk).
amended complaint, plaintiff must allege facts showing that a
specific defendant exposed subjected him to scans knowing
that they posed an excessive risk to his health. If plaintiff
wishes to pursue a separate claim based on his glaucoma
treatment and/or request for cannabis, he must plead facts
showing that a specific defendant responded to his medial