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Newsome v. Loterzstain

United States District Court, E.D. California

December 19, 2019

M. LOTERZSTAIN, et al., Defendants.



         Plaintiff proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. The court dismissed his first amended complaint (ECF No. 14) and he now proceeds with his second amended complaint (ECF No. 18). The court must screen it.


         I. Legal Standards

         Pursuant 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.

         Although 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).

         In 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 562-563 (2007).

         II. Analysis

         Plaintiff alleges that defendant Dirisu, a certified nursing assistant at the California Medical Facility (“CMF”), had a “wish list” of inmates he desired, for personal reasons, to transfer out of the CMF Outpatient Housing Unit (“OHU”). ECF No. 18 at 3. In July of 2017, plaintiff was on Dirisu's list and, as a consequence, Dirisu “began verbally and mentally abusing [him].” Id. Plaintiff filed an administrative grievance against Dirisu and the latter allegedly responded by enlisting the aid of defendant Loterzstain - a CMF physician - who effected plaintiff's transfer out of the OHU. Id. at 3-4. The transfer allegedly resulted in an aggravation of plaintiff's chronic medical conditions. Id. at 6-8.

         Plaintiff also alleges that Loterzstain was deliberately indifferent to his medical needs insofar as she: (1) discontinued his pain medication; (2) offered no treatment for his swelling hands; (3) removed him from the care of the University of California San Francisco's neurology department; and (4) discontinued his physical therapy. Id. at 10-11. Plaintiff appears to allege that the deficient care offered by Loterzstain was also undertaken in retaliation for his grievances filed against Dirisu. Id. at 14.

         The court finds that the foregoing allegations, taken as true, are sufficient to state: (1) a First Amendment retaliation claim against defendants Dirisu and Loterzstain and; (2) an Eighth Amendment medical deliberate indifference claim against Loterzstain.[1] The court also finds that the claims arise out of “a common core of facts” and thus, are sufficiently related to proceed together. See Thorne v. El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986) (“[R]elated claims will involve ‘a common core of facts' or will be based on related legal theories while unrelated claims will be ‘distinctly different,' and based on different facts and legal theories.”) (internal citations omitted). The remaining claims and parties in the complaint will be dismissed with leave to amend.

         Plaintiff alleges that Lori W. Austin - the Chief Executive Officer of “CMF” - denied his medical grievance appeals. ECF No. 18 at 18. He claims that, by doing so, she effectively acted in concert with Dirisu and Loterzstain. Id. But prisoners have no stand-alone due process rights related to the grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). And plaintiff has failed to allege facts indicating that Austin was aware of the retaliation purportedly undertaken by Dirisu and Loterzstain.

         Plaintiff also claims that the actions of Dirisu and Loterzstain violated his equal protection rights under the Fourteenth Amendment. “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based on his membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Here, plaintiff has failed to allege facts indicating that defendants acted with that purpose or intent. Instead, the complaint appears to allege that Dirisu (and subsequently Loterzstain) acted against plaintiff because of his use of the grievance system, rather than his membership in any protected class.

         Finally, plaintiff alleges that the actions of Dirisu and Loterzstain violated his rights under 42 U.S.C. § 1985(3). To state a violation of § 1985(3), a ...

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