United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
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
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.
In Forma Pauperis Application
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.
Accordingly, plaintiff's request to proceed in forma
pauperis will be granted.
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).
Legal Standards for Screening Prisoner Civil Rights
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).
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,
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).
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).
Screening of Plaintiff's Fourth Amended Complaint
(ECF No. 18)
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.
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).
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.
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.
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.
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.
seeks a court order directing that he receive medical care
outside CDCR and 95 million dollars in damages. ECF No. 18 at
Challenge to Disciplinary Conviction
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 ...