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Oglesby v. Department of Corrections

United States District Court, E.D. California

September 23, 2019

JESSE FRANK OGLESBY, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights complaint under 42 U.S.C. § 1983. Plaintiff has been provided two opportunities in which to plead sufficient facts to state an Eighth Amendment claim. Despite such opportunities, the undersigned finds that plaintiff fails to do so. Accordingly, the court recommends that plaintiffs second amended complaint be dismissed without prejudice, but without leave to amend.

         II. Screening Standards

         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). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

         A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conlev v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiffs favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

         III. Plaintiffs Second Amended Complaint

         On July 29, 2017, plaintiff fell in the shower and suffered injuries. Plaintiff alleges that he is disabled as defined under the Americans with Disabilities Act ("ADA"), and therefore qualifies for shower assistance and to be provided safe equipment such as a shower chair, shower rails, shower floor grips, and wheelchair accessibility. (ECF No. 16 at 5.) Plaintiff claims that each named defendant knew of plaintiff s medical history and condition because it is readily accessible in the California Department of Corrections ("CDCR") computer, yet defendants "blatantly disregarded CDCR's policy and procedure, " thus violating plaintiffs Eighth and Fourteenth Amendment rights. (ECF No. 16 at 5.) As a result of the fall, plaintiff contends he suffered injuries to his head, neck, lower back and right shoulder. (ECF No. 16 at 7.)

         In his first claim, plaintiff alleges that the Secretary of CDCR and Warden Eric Arnold violated plaintiffs Eighth and Fourteenth Amendment rights, CDCR policy and procedure, and the ADA when they failed to properly house plaintiff according to his serious medical needs. Plaintiff claims that the defendants' deliberate indifference led to his fall in the shower while using a defective shower chair provided by defendants because under policy and procedure and the ADA, they were required to monitor, repair, or replace equipment when needed. Defendants' failure to properly maintain the shower chair caused serious injury to plaintiff when he fell backwards, hitting his head, neck, lower back and right shoulder, causing severe pain.

         In his second claim, plaintiff claims that defendants John Doe one, John Doe two and Jane Doe violated plaintiffs Eighth Amendment rights when they provided plaintiff with a defective shower chair. Such Doe defendants violated CDCR policy and procedure and the ADA by putting a defective shower chair in the shower for plaintiff to use, and failing to monitor the ADA equipment, and follow CDCR policy and procedures. (ECF No. 16 at 7.)

         In his third claim, plaintiff alleges that defendant Dr. Dhaliwal was deliberately indifferent to plaintiffs serious medical needs by failing to follow up on plaintiffs condition when plaintiff notified the LVN on July 30, 2017, that plaintiffs condition had worsened overnight. Plaintiff suffers from headaches, neck and lower back pain, walking difficulty from weakness and shaking on the left side, severe stroke-like symptom[s], hemiparesis, and "migraines as we fatigue." (ECF No. 16 at 5.) Dr. Dhaliwal saw plaintiff on July 29, 2017, after plaintiff fell in the shower, prescribed Tylenol for plaintiffs headache, and told plaintiff he would be seen by plaintiffs primary care physician ("PCP") on Monday due to "plaintiffs follow-up schedule[d] visit." (ECF No. 16 at 8.) But plaintiff now alleges that Dr. Dhaliwal knew that plaintiffs new injuries would not be addressed by plaintiffs PCP on Monday because plaintiff "would only be seen for that follow[-up] only, " not for his new injuries. Indeed, plaintiff alleges that his PCP informed plaintiff "that he would need to see Dr. Dhaliwal about his injury." (Id.) Plaintiff was not seen again by Dr. Dhaliwal, but instead was transferred on an unidentified date to CMF. Plaintiff alleges that such failure to follow up caused plaintiff "serious harm, " (ECF No. 16 at 8), including severe pain (Id. at 9).

         Plaintiff seeks, inter alia, money damages.

         IV. Analysis

         A. 42U.S. ...


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