United States District Court, S.D. California
ORDER DISMISSING DEFENDANTS AND DIRECTING U.S.
MARSHAL TO EFFECT SERVICE OF SECOND AMENDED COMPLAINT ON
DEFENDANT VON LINTIG
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
Barry Ernest Ochoa, a prisoner incarcerated at Correctional
Training Facility located in Soledad, California, and
proceeding pro se, has filed a civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff's initial
Complaint was stricken by the Court for failing to comply
with the Court's General Order 653A. See Doc.
No. 4. However, the Court later permitted Plaintiff to file a
First Amended Complaint (“FAC”). See
Doc. No. 9. In addition, Plaintiff filed a Motion to Proceed
In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915(a), a Motion for Leave to File Excess Pages, and
a Motion to Appoint Counsel. See Doc. Nos. 10, 11,
25, 2019, the Court granted Plaintiff's Motion to Proceed
IFP, denied his Motion to Appoint Counsel, granted his Motion
for Leave to File Excess Pages, and sua sponte dismissed his
FAC for failing to state a claim upon which relief could be
granted pursuant to 28 U.S.C. § 1915(e)(2) and §
1915A(b). On August 8, 2019, Plaintiff filed his Second
Amended Complaint (“SAC”). See Doc. No.
Screening of Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
Standard of Review
Court previously informed Plaintiff, because he is a prisoner
and is proceeding IFP, his SAC requires a pre-answer
screening pursuant to 28 U.S.C. § 1915(e)(2) and §
1915A(b). Under these statutes, the Court must sua sponte
dismiss a prisoner's IFP complaint, or any portion of it,
which is frivolous, malicious, fails to state a claim, or
seeks damages from defendants who are immune. See
Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017)
(discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en
banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th
Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The
purpose of [screening] is ‘to ensure that the targets
of frivolous or malicious suits need not bear the expense of
responding.'” Nordstrom v. Ryan, 762 F.3d
903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”).
Federal Rules of Civil Procedure 8 and 12(b)(6) require a
complaint to “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) (internal quotation marks omitted).
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.”
Id. “Determining whether a complaint states a
plausible claim for relief [is] ... a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. The
“mere possibility of misconduct” or
“unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
Plaintiff's Allegations 
3, 2013 Plaintiff “arrived” at CEN and
“requested [Hepatitis] C treatment.” SAC at 3.
Medical staff ordered “bloodwork” on July 26,
2013 which “showed Plaintiff had [Hepatitis] C genotype
1(a).” Id. Plaintiff was “referred to
the [Hepatitis] C clinic where additional bloodwork was
ordered.” Id. Plaintiff claims this additional
bloodwork “showed an increase in the severity of
[Plaintiff's] medical condition.” Id.
November 12, 2013, Plaintiff made an “additional
request for treatment” when he was seen at the
“Hep C clinic.” Id. Plaintiff alleges he
“complained of extreme pain and recurring
symptoms.” Id. However, he claims Defendant
Von Lintig “refused [Plaintiff's] request
for treatment” because according to the CDCR's
Hepatitis C “management policy and procedure, ”
Plaintiff needed to be “at least stage 2” before
he became “eligible for the treatment.”
Id. Plaintiff alleges Von Lintig “refused to
complete a (TAR) treatment authorization request”
Id. “At this point the [Plaintiff's
Hepatitis C] had not yet caused any permanent liver (or
other) damage.” Id. Von Lintig did order a
“biopsy of [Plaintiff's] liver.” Id.
January 10, 2014, a “report was issued indicating that
the results of the biopsy” indicated that
Plaintiff's Hepatitis C “had progressed to stage
2.” Id. Plaintiff was “notified that a
14 day follow up would be generated” but “it
never happened.” Id. Plaintiff submitted a
“Health Care Services Request” form
“seeking treatment” for his stage 2 Hepatitis C.
later, ” Plaintiff had an appointment with Von Lintig
and claims he “stated [his] concern about developing
cirrhosis” and “requested treatment.”
Id. However, Plaintiff alleges Von Linting
“denied [his] request and stated CDCR's policy had
changed and [he] would not now be eligible for
treatment” until he reached “stage 3.”
was examined by Dr. Rogelio Ortega on February 1, 2016 and
informed Plaintiff that he was “concerned about [him]
developing cirrhosis.” Id. One day later, Dr.
Kyle Seely examined Plaintiff and “noted that
[he] was eligible for Hepatitis C treatment and he completed
a TAR.” Id. On March 8, 2016, Dr. Seeley
informed Plaintiff that his treatment “was deferred by
the HCV Oversight Committee due to [Plaintiff] possibly being
released early on parole.” Id. However, Dr.
Seeley, after speaking with Plaintiff, “emailed ...