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Zakosky v. Department of Veterans Affairs

United States District Court, S.D. California

December 20, 2019

RICHARD ZAKOSKY, Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915(E)(2) AND DENYING MOTION TO APPOINT COUNSEL (DOC. NO. 7)

          JOHN A. HOUSTON, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         On July 6, 2017, Plaintiff Richard Zakosky (“Plaintiff”) filed a complaint with the Court along with a motion to proceed in forma pauperis and a motion to appoint counsel. Doc. Nos. 1, 2, 3. On October 24, 2017, the Court granted Plaintiff's motion to proceed in forma pauperis, denied his motion to appoint counsel, and on sua sponte screening, dismissed the complaint without prejudice. See Doc. No. 4. Plaintiff filed his First Amended Complaint (“FAC”) on November 17, 2017. See Doc. No. 7. On August 17, 2018, Plaintiff's FAC was dismissed without prejudice for failure to state a claim. See Doc. No. 10. Presently before the Court is Plaintiff's Second Amended Complaint (“SAC”) and Motion to Appoint Counsel, (doc. no. 11), which pursuant to 28 U.S.C. § 1915(a) is subject to mandatory sua sponte review.

         BACKGROUND

         Plaintiff's SAC alleges that during his employment as a telemetry technician for the Veterans Affairs Hospital (the “VA”) in San Diego, California, he identified that the “parameter setting [on the telemetry instruments were] too high or too low which created adverse events in telemetry central.” Doc. No. 11 at 2. Plaintiff reported this to the nurse manager and was told, “fro[m] now on, all the telemetry techs will handle [their] issues on [their] own, ” which worsened Plaintiff's depression. Id. On or about September 30, 2013, Plaintiff “went to [the] Office of Inspector General and filed a complaint to [the] special agent in charge of VA San Diego.” Id. Plaintiff alleges when no one from the Office of Inspector General showed up after twelve days, he had a mental breakdown. Id. Plaintiff was then “relieved of his duties and transferred to the emergency department.” Id. at 3. Thereafter, his mental health worsened and his “mental appointments were getting cancelled.” Id.

         Finally, Plaintiff claims his second amendment rights were stripped from him by Judge Steven Stone in San Diego Superior Court on May 15, 2015. Id. The remainder of the complaint lists the names of ten individuals alongside descriptions of their actions that negatively impacted Plaintiff. Id.

         DISCUSSION

         I. Screening Pursuant to 28 U.S.C. § 1915(a)

         i. Legal Standard

         Any complaint filed by a person filing in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to mandatory and sua sponte review and dismissal by the court to the extent it is “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. §1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). “The 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).

         To survive sua sponte review, Plaintiff's SAC must 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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” falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         If the Court determines that the complaint fails to state a cognizable claim, the Court may grant leave to amend to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000). However, while the court “has an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, ” Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         ii. Analysis

         In dismissing Plaintiff's initial complaint and FAC, the Court found that Plaintiff had not presented actionable claims “beyond stating that there was wrongdoing at the Department ...


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