United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE
DISMISSED FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES
[ECF NO. 1]
Angel Rodriguez is appearing pro se and in forma pauperis in
this pursuant to the Federal Tort Claims Act (FTCA), 28
U.S.C. § 2674. This matter was referred to a United
States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
filed the instant action on July 23, 2019, in the United
States District Court for the Northern District of
California. On July 29, 2019, the action was transferred to
this Court and received on August 20, 2019. Therefore,
Plaintiff's complaint filed on July 23, 2019, is before
the Court for screening.
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
or malicious, ” that “fail to state a claim on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
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 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
Court accepts Plaintiff's allegations in the complaint
and first amended complaint as true only for the
purpose of the sua sponte screening requirement
under 28 U.S.C. § 1915.
28, 2018, at approximately 5:13 p.m., officer Lee gave
Plaintiff and his cellmate their dinner trays. After a couple
minutes, both inmates noticed tobacco in their food trays and
both of them ate a small portion of it. While the officers
were still passing out the food trays, both inmates requested
them to inspect their food and the officers verified that
there was tobacco in their food. Pictures were taken and the
lieutenant was notified of the incident. Plaintiff then
requested medical attention because he felt dizzy and
nauseous. Medical personnel Spears documented the incident
but never took any stool samples or blood for possible
infection. Spears simply said it was tobacco and left.
Lieutenant Carroll took pictures of the tray and spoon and
indicated the incident was logged by officer Dunwoody. Both
inmates were provided different trays, but they did not eat
because of the previous incident. The Bureau of Prisons has a
duty to protect inmates and the food they eat and make sure
adequate medical treatment is provided.
Under the Prison ...