United States District Court, S.D. California
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)
A. HOUSTON, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Screening Pursuant to 28 U.S.C. § 1915(a)
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).
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).
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).
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