United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION
RECOMMENDING THE INSTANT ACTION BE DISMISSED FOR FAILURE TO
STATE A COGNIZABLE CLAIM FOR RELIEF [ECF NO. 19]
Ricardo Martinez is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff’s second amended
complaint, filed September 16, 2019.
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 “fails to state a claim on
which relief may be granted, ” or that “seeks
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)). Plaintiff must
demonstrate that each named defendant personally participated
in the deprivation of his rights. Iqbal, 556 U.S. at
676-677; Simmons v. Navajo County, Ariz., 609 F.3d
1011, 1020-1021 (9th Cir. 2010).
proceeding pro se in civil rights actions are still entitled
to have their pleadings liberally construed and to have any
doubt resolved in their favor, but the pleading standard is
now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012) (citations omitted), and 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. Ashcroft v.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Serv., 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. Ashcroft v. Iqbal, 556 U.S. at 678;
Moss v. U.S. Secret Serv., 572 F.3d at 969.
Court accepts Plaintiff’s allegations in the first
amended complaint as true only for the purpose of
the sua sponte screening requirement under 28 U.S.C.
22, 2018, when Plaintiff was on his way to the morning
medication pass, officers S. Furlong and D. Dozer approached
Plaintiff and conduced a marked “brutal search
down.” Plaintiff advised the officers to take it easy
on his spinal cord, but they replied that they did not give a
“fuck” about Plaintiff’s medical
conditions. During the search, Furlong grabbed
Plaintiff’s leg arm and applied a lot of pressure on
the left side of his neck.
14, 2018, at the morning medication pass, as Plaintiff was
walking to the yard from the patio, an inmate attacked him
from behind, hitting him on the left side of the head, left
shoulder, and he was kicked when on the ground. Officer
Furlong participated in the incident by giving orders to the
hit man. Sergeant Stane participated in the incident by
destroying Plaintiff’s eyeglasses by breaking the
frames. Plaintiff’s legal property was also taken away.
4, 2018, officer D. Dozer called Plaintiff to the medical
clinic where Dozer conducted a “roughshod” search
worsening Plaintiff’s lesions and tumors. Although
Plaintiff complained of being in pain, Dozer raised
Plaintiff’s leg and grabbed the left side of his heck
and arm. He continued to bend and twist Plaintiff’s
August 24, 2018, Plaintiff’s primary care physician,
Timothy Standon, denied serious medical care. Plaintiff
suffers lesions to the head that causes hemorrhage to left
ear and irregular flashing headaches. Plaintiff also suffers
a major intracerebral flow voids. Plaintiff was denied the
recommended evaluation by neurosurgeons at Stanford Medical
Center, UCSF, or UCLA. Plaintiff was also denied evaluation
by a brain specialist. Plaintiff claims he was denied an MRI
of lumbar spine, pain medication and pain management
evaluation by the pain committee, diabetes medication, a
rescue asthma inhaler, an evaluation for hearing impaired, an
operation for a growth of spermatic cord tumor, an operation
of a hemorrhoids, incontinence supplies, single cell status,
an evaluation for a burning and swollen nose, and
21, 2019, Warden C. Pfeiffer and officer Herrera retaliated
against Plaintiff and hired a person motivated solely by the
pay. On this date, when Plaintiff attempted to go back to his
cell from the morning medication pass, an inmate attacked him
from behind and stabbed Plaintiff in the forehead, left, arm,
and punched his left shoulder and mouth causing the loss of
several teeth. Notice of the incident was provided to C.
21, 2019, after Plaintiff attempted to go back to his cell
after morning medication pass, an inmate attacked him from
behind his wheelchair and stabbed Plaintiff in the forehead
and left arm. The inmate then punched his left shoulder and
mouth cutting both lips and causing him to lose two teeth.