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Smith v. Municipality of Fresno

United States District Court, E.D. California

November 7, 2019

GARY PAUL SMITH, Plaintiff,
v.
MUNICIPALITY OF FRESNO, et al, Defendants.

         SCREENING 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)

         Gary 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).

         The 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.

         I. SCREENING REQUIREMENT

         The 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. § 1915(e)(2)(B)(ii).

         A 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.

         Pleadings 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 Iqbal).

         II. SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT

         Plaintiff's First Amended Complaint alleges as follows:

         Dr. 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.”

         Three 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 back.

         Ever 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.

         CDCR 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 ...


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