United States District Court, E.D. California
ORDER ORDER FOR PLAINTIFF TO: (1) FILE A FIRST AMENDED
COMPLAINT; OR (2) NOTIFY THE COURT THAT HE WANTS TO STAND ON
HIS COMPLAINT, SUBJECT TO THIS COURT ISSUING FINDINGS AND
RECOMMENDATIONS TO THE DISTRICT JUDGE CONSISTENT WITH THIS
ORDER (ECF NO. 1)
Paul Smith (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. §
1983. Plaintiff filed the complaint commencing this action on
May 14, 2019, (ECF No. 1), and his First Amended Complaint on
June 10, 2019. (ECF No. 6).
Court has reviewed the complaint and finds that Plaintiff has
failed to state any cognizable claim. Plaintiff now has
options as to how to move forward. Plaintiff may file an
amended complaint based on the legal standards in this order
if he believes that additional facts would state additional
claims. If Plaintiff files an amended complaint, the Court
will screen that amended complaint in due course.
Alternatively, Plaintiff may file a statement with the Court
that he wants to stand on this complaint and have it reviewed
by the district judge, in which case the Court will issue
findings and recommendations to the district judge consistent
with this order.
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). As Plaintiff is proceeding in forma
pauperis (ECF No. 7), the Court may also screen the
complaint under 28 U.S.C. § 1915. “Notwithstanding
any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the
court determines that the action or appeal fails to state a
claim upon which relief may be granted.” 28 U.S.C.
complaint is required to contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id.
(quoting Twombly, 550 U.S. at 570). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT
First Amended Complaint alleges as follows:
Lavis Levy, Orthopedic Surgeon at Alvarado Hospital and
Medical Center, inserted a nail wrong. Plaintiff knows this
for two reasons. First, for four years Plaintiff was in
excruciating pain and nobody would listen. Second, when a
doctor finally listened, that doctor said “You had CDCR
put hardware in and now you want us to remove it?”
Plaintiff responded, “If that's what's causing
the pain, yes.”
weeks later, Plaintiff was sent to a specialist named Dr.
Casey, an orthopedic surgeon at a hospital in Manteca. Dr.
Casey told Plaintiff that the surgeon put the nail in wrong.
Also, the screw had broken off and would not be able to get
back half of it. Plaintiff broke his femur and cracked his
left hip slipping on something at work at R. J. Donovan (RJD)
P.I.A. Laundry. Ever since, Plaintiff has suffered from
extreme pain in his left hip and thigh. Also, Plaintiff has
scoliosis and DDD cervical in exactly the same place in his
since Dr. KrPan [illegible] at SCC said, Plaintiff checked
his T3 and Plaintiff asked how can you check a pill
that's crushed and floated? The doctor said it happens
all the time.
said that Plaintiff refused an appointment to follow-up with
Dr. Levy. Plaintiff asks “Why wouldn't I go to ask
him why I'm having so much Pain? Ask them to produce a
signed refusal. They won't be able to.” Plaintiff
has a copy of a ...