United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
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.
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. §
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.
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
Plaintiffs Second Amended Complaint
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.)
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.
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.)
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).
seeks, inter alia, money damages.