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Nichols v. United States

United States District Court, E.D. California

August 28, 2019

GARY NICHOLS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES [ECF NO. 1]

         Plaintiff 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.

         Plaintiff 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.

         I.

         SCREENING REQUIREMENT

         The 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).

         A 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 Cir. 2002).

         Prisoners 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.

         II.

         COMPLAINT ALLEGATIONS

         The 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.

         On July 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.

         III.

         DISCUSSION

         A.Exhaustion Under the Prison ...


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