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Ausborn v. Chcf California

United States District Court, E.D. California

September 13, 2019

RANDY AUSBORN, Plaintiff,
v.
CHCF CALIFORNIA, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff is a state prisoner at the California Health Care Facility (CHCF), under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with this civil rights action filed pursuant to 42 U.S.C. § 1983, and a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has also filed numerous requests for preliminary injunctive relief.

         This action is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, plaintiff's request to proceed in forma pauperis is granted. The court reviews plaintiff's Fourth Amended Complaint, finds that it is not suitable for service in its present form, and grants leave to amend. The court recommends the dismissal of defendants California and the California Governor, and recommends that plaintiff's numerous requests for preliminary injunctive relief be denied. Additionally, plaintiff is admonished to refrain from filing any further documents in this case that are not authorized by court order.

         II. In Forma Pauperis Application

         Plaintiff has submitted an affidavit and prison trust account statement that make the showing required by 28 U.S.C. § 1915(a). See ECF No. 8; see also ECF No. 9.[1] Accordingly, plaintiff's request to proceed in forma pauperis will be granted.

         Plaintiff must still 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 to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's 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).

         III. Legal Standards for Screening Prisoner Civil Rights Complaints

         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 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)(1), (2). A claim is legally frivolous when 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).

         Rule 8 of the Federal Rules of Civil Procedure “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.'” Iqbal at 678 (quoting Twombly 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 at 556).

         “A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). See also Fed.R.Civ.P. 8(e) (“Pleadings shall be so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         IV. Screening of Plaintiff's Fourth Amended Complaint (ECF No. 18)

         Plaintiff filed five putative complaints in this action between May 20, 2019 and July 17, 2019. See ECF Nos. 1, 7, 10, 13, 18. The allegations in the complaints are relatively consistent, including challenges to a disciplinary sentence, ECF No. 1 at 3, ECF No. 10 at 3, ECF No. 13 at 3; a request to reduce plaintiff's sentence, ECF No. 7 at 3; requests for stronger pain medication, ECF No. 1 at 4, ECF No. 10 at 4, ECF No. 13 at 4; a request for an MRI of plaintiff's arm, ECF No. 1 at 4; and an apparent challenge to the amount of drinking water provided (one gallon per day) due to the detection of Legionnaire's disease in the potable water source, ECF No. 1 at 5.

         The court now screens plaintiff's most recently filed complaint, his Fourth Amended Complaint (ECF No. 18), pursuant to 28 U.S.C. § 1915A. All prior complaints are deemed superseded. See Fed.R.Civ.P. 15(a)(2).

         A. Plaintiff's Allegations

         In tandem with reviewing plaintiff's Fourth Amended Complaint, ECF No. 18, the court has reviewed the many additional supporting documents filed by plaintiff, see ECF Nos. 16-7, 21-2, 26, 28-9, 31-4. These documents are often in journal format, identifying the chronology and specific times of plaintiff's ongoing concerns. Some of the background information provided below is taken from these documents. The court will direct the attachment of plaintiff's medical test results, ECF Nos. 31-3, to the Fourth Amended Complaint.

         Plaintiff is a Desert Storm veteran serving a relatively short sentence in CDCR. He has previously received medical treatment through the Veterans Administration. Plaintiff references several medical issues, including an enlarged prostate and use of a Foley catheter; back and hip pain; arm pain; and chest and lung pain. He alleges generally that CHCF medical staff are unhelpful, not doing their jobs, and don't care; they refuse to increase plaintiff's pain medication beyond “tylenol aspirin, ” despite a recommendation for stronger pain medications from VA physicians; and they refuse to send plaintiff to outside physicians or the ER.

         Plaintiff has filed copies of the following medical imaging results: Plaintiff had chest x-rays in March 2019, indicating “increased interstitial markings and bronchial thickening” in his lungs, ECF No. 31 at 3, and a recommendation to rule out infection or aspiration in the lung bases, ECF No. 32 at 2-3; he had a chest CT scan with contrast later that month, indicating his lungs were “well aerated and clear, ” ECF No. 33 at 1-2; a CT angiography of plaintiff's chest later in March 2019 found “mild thickening of the esophagus” consistent with “esophagitis and/or reflux disease, ” but no evidence of pulmonary embolism, aortic aneurysm or dissection or cardiopulmonary disease, ECF No. 33 at 7; a coronary angiogram conducted in April 2019 was normal with “no acute cardiopulmonary pathology, ” ECF No. 33 at 3-4; in May 2019 plaintiff had x-rays of his cervical and thoracic spine, which were unremarkable with the exception of indicating that plaintiff's gall bladder had previously been removed, ECF No. 31 at 4-5; a July 2019 brain MRI revealed “stable nonspecific foci . . . within the white matter” that may be related to “chronic small vessel ischemia, previous viral infection, Lyme disease, migraine headaches, or a demyelinating process, ” ECF No. 33 at 5; plaintiff had an ultrasound of his prostate in August 2019, indicating a nodule in the right seminal vesicle but PSA density within the normal range, ECF No. 31 at 1-2; ultrasounds of plaintiff's kidneys in August 2019 were normal, ECF No. 33 at 1.

         In addition to his medical concerns, plaintiff challenges a disciplinary sentence that lengthened his term of incarceration, and he seeks a reduction of his sentence. He also appears to challenge the fact that prisoners have been limited to one gallon of water a day (drawn from a prison shower) after finding evidence of Legionnaire's Disease in the potable water system. Plaintiff's various other filings make numerous and wide-ranging additional allegations, e.g., that Correctional Officer (C/O) Gonzales has threatened to “bitch slap” plaintiff out of camera view, ECF No. 30 at 1.

         Plaintiff seeks a court order directing that he receive medical care outside CDCR and 95 million dollars in damages. ECF No. 18 at 12.

         B. Analysis

         1. Challenge to Disciplinary Conviction

         Although his factual allegations are not well developed, it appears that plaintiff is challenging, in part, the extension of his prison sentence due to a disciplinary conviction. Plaintiff does not appear to challenge the ...


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