United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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).
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
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.
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.
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. 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
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.
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.
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 ...