Carlos Smith v. Dileo et al
Filing
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ORDER DISMISSING ACTION with Prejudice for Failure to State a Claim; ORDER Granting in Part Motion for Records; Dismissal Counts as a Strike Pursuant to 28 U.S.C. § 1915(g); Clerk to Terminate all Pending Motions and Close Case signed by Magistrate Judge Michael J. Seng on 11/21/2014. CASE CLOSED.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CARLOS SMITH,
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Plaintiff,
v.
LARRY DILEO, et al.,
Defendants.
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CASE NO. 1:14-cv-0429-MJS (PC)
ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM (ECF No. 9)
ORDER GRANTING IN PART MOTION
FOR RECORDS (ECF No. 10)
DISMISSAL COUNTS AS A STRIKE
PURSUANT TO 28 U.S.C. § 1915(g)
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CLERK TO TERMINATE ALL PENDING
MOTIONS AND CLOSE CASE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate
Judge jurisdiction. No other parties have appeared in the action.
The Court screened Plaintiff‟s complaint (ECF No. 1), and dismissed it for failure
to state a claim, but gave leave to amend. (ECF No. 6.) Plaintiff filed a first amended
complaint (ECF No. 7), which also was dismissed, with leave to amend, for failure to
state a claim (ECF No. 8). Plaintiff since has filed a second amended complaint, which is
before the Court for screening. (ECF No. 9.) Also before the Court is Plaintiff‟s motion for
records. (ECF No. 10.)
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I.
THE COMPLAINT
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A.
Screening Requirement
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may
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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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B.
Pleading Standard
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Section 1983 “provides a cause of action for the deprivation of any rights,
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privileges, or immunities secured by the Constitution and laws of the United States.”
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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
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Section 1983 is not itself a source of substantive rights, but merely provides a method for
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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94
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(1989).
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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)
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that a right secured by the Constitution or laws of the United States was violated and (2)
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that the alleged violation was committed by a person acting under the color of state law.
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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,
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1245 (9th Cir. 1987).
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A complaint must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief
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that is plausible on its face.” Id. Facial plausibility demands more than the mere
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possibility that a defendant committed misconduct and, while factual allegations are
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accepted as true, legal conclusions are not. Id. at 677-78.
Plaintiff’s Allegations
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C.
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Plaintiff is incarcerated at Kern Valley State Prison (“KVSP”), where the acts
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giving rise to his complaint occurred. Plaintiff names as Defendants (1) Dr. C.K. Chen,
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(2) Dr. S. Lopez, and (3) Dr. Larry Dileo.
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Plaintiff‟s allegations can be summarized essentially as follows:
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Plaintiff is diagnosed with “the most dangerous and lethal type” of Hepatitis C. He
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is in severe pain.
He submitted multiple health care requests seeking curative treatment and pain
management. Defendants denied him care and did not provide him pain management.
As a result, Plaintiff has discomfort that impedes his ability to function
independently. He is at risk for liver distress or failure.
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Plaintiff seeks a declaratory judgment that his constitutional rights were violated,
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compensatory and punitive damages, an injunction ordering immediate medical
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treatment, and the deposit of “GSA Bonds.”
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Attached to Plaintiff‟s complaint are a GSA Standard Form 24 Bid Bond, Standard
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Form 25 Performance Bond, and Standard Form 25A Payment Bond, signed by Plaintiff
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as Principal, and an individual named Sean Pierce as surety. Plaintiff does not explain
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the significance of these attachments.
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D.
Analysis
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Medical Indifference
A claim of medical indifference requires (1) a serious medical need, and (2) a
deliberately indifferent response by defendant. Jett v. Penner, 439 F.3d 1091, 1096 (9th
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Cir. 2006). The deliberate indifference standard is met by showing (a) a purposeful act or
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failure to respond to a prisoner's pain or possible medical need and (b) harm caused by
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the indifference. Id. Where a prisoner alleges deliberate indifference based on a delay in
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medical treatment, the prisoner must show that the delay led to further injury. See Hallett
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v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); McGuckin v. Smith, 974 F.2d 1050,
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1060 (9th Cir. 1992); Shapley v. Nevada Bd. Of State Prison Comm‟rs, 766 F.2d 404,
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407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is insufficient to state
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a claim of deliberate medical indifference. Shapley, 766 F.2d at 407 (citing Estelle v.
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Gamble, 429 U.S. 97, 106 (1976)).
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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d
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1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only „be
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aware of the facts from which the inference could be drawn that a substantial risk of
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serious harm exists,‟ but that person „must also draw the inference.‟” Id. at 1057 (quoting
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Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “„If a prison official should have been
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aware of the risk, but was not, then the official has not violated the Eighth Amendment,
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no matter how severe the risk.‟” Id. (brackets omitted) (quoting Gibson, 290 F.3d at
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1188). Mere indifference, negligence, or medical malpractice is not sufficient to support
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the claim. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v.
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Gamble, 429 U.S. 87, 105-06 (1976)).
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Plaintiff‟s allegation that he has been diagnosed with Hepatitis C is sufficient to
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show a serious medical need. Jett, 439 F.3d at 1096 (a “serious medical need” may be
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shown by demonstrating that “failure to treat a prisoner's condition could result in further
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significant injury or the „unnecessary and wanton infliction of pain‟”); McGuckin v. Smith,
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974 F.2d 1050, 1059-60 (9th Cir. 1992) (“The existence of an injury that a reasonable
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doctor or patient would find important and worthy of comment or treatment; the presence
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of a medical condition that significantly affects an individual's daily activities; or the
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existence of chronic and substantial pain are examples of indications that a prisoner has
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a „serious‟ need for medical treatment.”).
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However, the complaint does not sufficiently allege that Defendants knowingly
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denied and delayed medically necessary care or knowingly provided unacceptable
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medical care. See Toguchi, 391 F.3d at 1058-60 (9th Cir. 2004). Plaintiff‟s allegations do
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not explain what information he conveyed to Defendants, how Defendants responded, or
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the reasons, if any, given for the decision not to provide the treatment Plaintiff requested.
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The allegations do not provide a basis for concluding that Defendants acted maliciously
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or with conscious disregard for Plaintiff‟s serious medical need.
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Plaintiff's disagreement with the treatment decisions and his belief that he should
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have received treatment, without more, is not a basis for an inadequate medical care
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claim unless the course of treatment chosen is medically unacceptable and in conscious
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disregard of an excessive risk to the prisoner's health. See Franklin v. Oregon, 662 F.2d
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1337, 1344 (9th Cir. 1981); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
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Nothing suggests Defendants intentionally provided medically unacceptable care. Evan
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v. Manos, 336 F. Supp. 2d 255, 261 (W.D.N.Y. 2004); see also Veloz v. New York, 339
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F. Supp. 2d 505, 521 (S.D.N.Y. 2004) (“To establish deliberate indifference, plaintiff must
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demonstrate that the defendants actually wished him harm, or at least, were totally
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unconcerned with his welfare.” (brackets omitted) (citing Hathaway v. Coughlin, 37 F.3d
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63, 69 (2d Cir. 1994))). Plaintiff‟s allegations are insufficient to allege anything other than
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a difference of opinion regarding appropriate treatment and pain medication.
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Plaintiff was advised of these deficiencies in the Court‟s prior screening orders.
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(ECF Nos. 6 & 10.) His failure to cure these deficiencies reasonably is construed as
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reflecting an inability to do so. Further leave to amend would be futile and will be denied.
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2.
Injunctive Relief
Plaintiff‟s request for immediate medical treatment falls within the category of
requests for injunctive relief.
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Injunctive relief, whether temporary or permanent, is an “extraordinary remedy,
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never awarded as of right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008).
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“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,
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that the balance of equities tips in his favor, and that an injunction is in the public
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interest.” Am. Trucking Ass‟ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.
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2009) (quoting Winter, 555 U.S. at 20). The Court does not have jurisdiction to order
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injunctive relief which would require directing parties not before the Court to take action.
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Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir.
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1985) (“A federal court may issue an injunction if it has personal jurisdiction over the
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parties and subject matter jurisdiction over the claim; it may not attempt to determine the
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rights of persons not before the court.”).
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Plaintiff has failed to show that he is likely to succeed on the merits since at this
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stage of the proceedings he has failed to state a cognizable claim. Absent a cognizable
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claim, Plaintiff is not entitled to injunctive relief.
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3.
GSA Bonds
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The Court is unable to discern the relevance of the GSA Standard Forms included
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with Plaintiff‟s complaint, or his request for the deposit of GSA Bonds. These forms, and
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the related bonds, are designed to meet contracting requirements for federal
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acquisitions. See 48 C.F.R. § 53.228. Plaintiff‟s claims do not involve federal acquisitions
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or contracting. Plaintiff has not stated a cognizable claim with respect to any GSA bonds.
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II.
REQUEST FOR RECORDS
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Plaintiff has submitted a request for records under the Freedom of Information
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Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a(d)(1). Plaintiff seeks the
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“„Second
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Certification . . . of records that are secured and maintained by your Department and/or
Amended
Complaint‟
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GSA/Bond(s)‟
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Information
and
Bonding
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Agency.” More specifically, Plaintiff seeks information relating to bonds he believes are
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implicated in this case and the individuals or entities that hold and secure those bonds.
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As a preliminary matter, the Freedom of Information Act (“FOIA”) requires federal
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agencies to make certain information available to the public. 5 U.S.C. § 552. The Privacy
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Act prohibits federal agencies from disclosing certain personal records without an
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individual‟s consent, and also provides a means for an individual to access his or her
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records maintained by a federal agency. 5 U.S.C. § 552a(d)(1). The Judicial Branch and
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the Federal Courts are not agencies, and thus FOIA and the Privacy Act are inapplicable
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to court records.
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Additionally, the only records on the Court‟s docket are those filed by Plaintiff and
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by the Court. Aside from the bond forms attached to Plaintiff‟s second amended
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complaint (ECF No. 9), no other bond records have been filed. To the extent Plaintiff
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requests a copy of the second amended complaint, his request will be granted. However,
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to the extent Plaintiff seeks additional records that do not exist, his request will be
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denied.
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III.
CONCLUSION AND ORDER
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Plaintiff‟s second amended complaint does not state a claim upon which relief
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may be granted. Plaintiff was advised in the prior screening orders of deficiencies in his
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claims and was given the opportunity to correct them. Plaintiff has failed to do so, and no
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useful purpose would be served in allowing yet another opportunity to amend.
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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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1. Plaintiff‟s motion for records (ECF No. 10) is GRANTED IN PART;
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2. The Clerk of Court shall send Plaintiff a copy of his second amended
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complaint (ECF No. 9), filed October 14, 2014;
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3. The action is DISMISSED WITH PREJUDICE for failure to state a claim;
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4. Dismissal shall count as a strike pursuant to the “three strikes” provision
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set forth in 28 U.S.C. § 1915(g); and
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5. The Clerk of Court shall terminate all pending motions and CLOSE this
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case.
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IT IS SO ORDERED.
Dated:
November 21, 2014
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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