United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding without counsel in an action
brought pursuant to 42 U.S.C. § 1983, seeks leave to
proceed in forma pauperis (ECF No. 2).
to Proceed In Forma Pauperis
application makes the showing required by 28 U.S.C. §
1915(a)(1). Accordingly, plaintiff's request to proceed
in forma pauperis is granted and his complaint is screened
to § 1915(e)(2), the court must dismiss the case at any
time if it determines the allegation of poverty is untrue, or
if the action is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against an immune defendant.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital 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
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) “requires a complaint to
include 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.” Twombly, 550 U.S. at
amended complaint, which supersedes the original, alleges
that, in October of 2015, defendant Wong ordered an MRI on
plaintiff's shoulder. ECF No. 9 at 3. Wong allegedly
failed to warn plaintiff that the MRI would involve an
injection of “Gadolinium” - a “highly
toxic” substance used to enhance imaging. Id.
Plaintiff claims that, after being injected with the
Gadolinium, he suffered a swelling and burning in his bones
and joints. Id. Years later, in October of 2018,
plaintiff saw a legal advertisement on television which
sought plaintiffs who had potential claims related to
exposure to Gadolinium. Id. Plaintiff requested a
twenty-four hour urinalysis test for Gadolinium traces from
Wong, but was denied. Id. Wong allegedly explained
that plaintiff's Gadolinium exposure had occurred long
ago and that, absent either a court order or plaintiff paying
for the test, he would not order it. Id. Plaintiff
claims that Wong's refusal to provide this test amounts
to deliberate indifference to his serious medical needs.
also appears to bring two other related claims. First, he
alleges that the unnamed MRI specialist who injected him with
Gadolinium in 2015 failed to warn him of “any risk of
unsafe patient care conditions.” Id. at 5.
Second, plaintiff alleges that Bayer Healthcare
Pharmaceutical, Inc. and McKesson Pharmaceuticals Corp. sold
the Gadolinium substance he was injected with and bear
responsibility for his adverse reaction. Id. at 4.
the foregoing claims are viable as currently articulated.
With respect to defendant Wong, plaintiff has failed to
allege that the test he requested was medically necessary for
his well-being. Rather, plaintiff alleges that he sought the
test to identify or confirm his previous reaction to the
Gadolinium injection and with an eye toward bringing a legal
claim based thereon. Wong had no obligation to assist
plaintiff in pursuing or preparing such a legal claim. With
respect to the unnamed technician, plaintiff has failed to
allege that this individual knew or had reason to know that,
at the time of the MRI, plaintiff would be exposed to a
“risk of unsafe patient care conditions.” See
Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir.
2003) (“Much like recklessness in criminal law,
deliberate indifference to medical needs may be shown by
circumstantial evidence when the facts are sufficient to
demonstrate that a defendant actually knew of a risk of
harm.”). Finally, with respect to the manufacturing
corporations, plaintiff has failed to allege facts indicating
that they should be considered state actors for the purposes
of section 1983. That is, plaintiff has failed to allege that
the corporations' decision to manufacture and sell
Gadolinium for medical use is “fairly attributable to
the state.” See ...