United States District Court, S.D. California
ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2) AND 28 U.S.C.
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
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.)
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.)
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.)
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 and Fourteenth Amendments.
(Id. at 5-6.)
Screening of FAC pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)
Standard of Review
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
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
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).
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
filed a CDCR Health Care Appeal, Log No. RJD HC 18002770
challenging Basto's decision. (Id. at 3
¶¶ 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 ...