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Powell v. Basto

United States District Court, S.D. California

October 24, 2019

LLOYD POWELL, CDCR #K-92698, Plaintiff,
v.
ADELITA BASTO, Registered Dietician; S. ROBERTS, Chief Medical Executive; M. GLYNN, Chief Medical Officer; S. GATES, Chief Health Care Correspondence & Appeals, Defendants.

          ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C. § 1915A(B)

          GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE

         I. Procedural History

         On May 9, 2019, Plaintiff Lloyd Powell, currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.)

         In his original Complaint, Plaintiff claimed Defendant Basto, a RJD dietician, discontinued a hepatic diet he had previously been prescribed at another prison. Plaintiff alleged Basto, together with Defendants Roberts, Glynn, and Gates, who reviewed and rejected the inmate appeal he filed challenging Basto's decision, all violated his Eighth Amendment right to adequate medical care. (Id. at 2-3.)

         On July 3, 2019, the Court granted Plaintiff leave to proceed in forma pauperis (“IFP”), but dismissed his Complaint sua sponte failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (See ECF No. 6.) The Court provided Plaintiff notice of his specific pleading deficiencies and granted him leave to file an amended pleading that corrected them. (Id. at 6-11.)

         On August 12, 2019, Plaintiff filed his Amended Complaint (“FAC”) (ECF No. 8). His FAC names the same Defendants, and it re-alleges the same Eighth Amendment inadequate medical care claims as to all of them. (Id. at 4-7.) However, Plaintiff now also contends Defendants' actions violated his right to procedural due process in violation of the Fifth[1] and Fourteenth Amendments. (Id. at 5-6.)

         II. Screening of FAC pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         A. Standard of Review

         As Plaintiff now knows, because he is a prisoner and is proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). A complaint is “frivolous” if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

         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.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         B. Plaintiff's FAC

         Plaintiff's factual allegations are brief and straightforward. He claims to suffer from congestive heart failure, hepatitis C, and is allergic to shellfish, eggs, and peanut butter. (See FAC at 2 ¶ 8.) After an evaluation at RJD in July 2018, however, Defendant Basto, a registered dietician and nutritionist, prescribed him a “general population diet” instead of the “hepatic diet” Plaintiff had been previously prescribed at another institution. (Id.)

         Plaintiff filed a CDCR Health Care Appeal, Log No. RJD HC 18002770 challenging Basto's decision. (Id. at 3 ΒΆΒΆ 9, 13.) That appeal was reviewed and denied at all levels of administrative review by Defendants Roberts, RJD's Chief Medical Executive, Glynn, RJD's Chief Executive Officer, and Gates, the Chief of the Health ...


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