Martinez v. Davey

Filing 21

ORDER Directing Clerk of Court to Randomly Assign District Judge; FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for Failure to State a Claim re 17 , signed by Magistrate Judge Barbara A. McAuliffe on 1/29/18. Referred to Judge Ishii. Objections to F&R Due Within Fourteen Days. This Case is Assigned to District Judge Anthony W. Ishii and Magistrate Judge Barbara A. McAuliffe. The New Case No. is: 1:16-cv-01655-AWI-BAM. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO MARTINEZ,

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Plaintiff,

Case No. 1:16-cv-01655-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE

v.
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO STATE A CLAIM

D. DAVEY,

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Defendant.
(ECF No. 17)

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FOURTEEN-DAY DEADLINE

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Findings and Recommendations

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Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this action under 42 U.S.C. § 1983. Plaintiff initiated this action on June 17, 2016, in

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the Northern District of California. (ECF No. 1.) On October 27, 2016, the case was transferred

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to this district. (ECF No. 6.) Plaintiff’s first amended complaint, filed on July 13, 2017, is

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currently before the Court for screening. (ECF No. 17.)

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I.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(A)(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that

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a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of

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satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969. Courts are required to liberally construe pro se prisoner

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complaints. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976).
Plaintiff’s Allegations

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II.

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Plaintiff is currently incarcerated at Salinas Valley State Prison in Soledad, California.

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The events in the complaint are alleged to have occurred while Plaintiff housed at the California

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Substance Abuse Treatment Facility in Corcoran, California.

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defendants: (1) Warden D. Davey; (2) Deputy Director J. Lewis, M.D.; and (3) Court-Appointed

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Federal Receiver.

Plaintiff names the following

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Plaintiff alleges that his Eighth Amendment right to medical records has been violated by

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defendants. Plaintiff contends that on November 20, 2015, and January 7, 2016, he was denied

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his medical records. (ECF No. 17 at p. 4.)
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Plaintiff further alleges as follows:

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January 01, 2017, an Oslen [sic] Review was submitted requesting of health
records of pulmonary consultation from 5/9/16. Of Pages 1of 4 to 4 of 4. From
11/4/16 to 11/13/16. Of pages 1 of 17 to 17 of 17. Of patient pharmacy final
report. From 8/9/16 to 8/13/16. From 6/28/16. From 12/1/16. [¶] February 27,
2017, an Oslen [sic] Review was submitted requestin[g] of records from 9/18/1612/26/16 and 2/22/17. [¶] October 13, 2016, an Oslen [sic] Review was
submitted requesting of records from 10/7/16 of pulmonary recommendation.
From 9/19/14.-11/4/15 to 11/13/15-and 8/9/16 to 8/13/16. [¶] September 20,
2016, an Oslen [sic] Review was submitted requesting records from 5/9/16-8/9/16
to 8/13/16-12/1/16-and 6/28/16. [¶] May 19, 2017, an Oslen [sic] Review was
submitted requesting of records from 10/10/12 to 5/31/17. [¶] On July 3, 2017, an
Oslen [sic] review was submitted requesting of records from 11/3/16-5/23/178/10/16.

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(ECF No. 17 at p. 7.)

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III.

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Plaintiff asserts a claim against defendants for the apparent failure to provide him with an

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“Olsen review” of his medical records.1 Plaintiff has no federal constitutional right to an Olsen

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review or copies of his records. See Stockton v. Billings, No. 1:10-cv-00757-GBC (PC), 2011

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WL 1459180, *2, *4 (E.D. Cal. Apr. 15, 2011) (finding no protected liberty interest in receiving

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copies of documents from prison file and no federal constitutional right to an Olson review);

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Johnson v. Avenal State Prison Warden, No. CV F 04 5845 AWI LJO P, 2007 WL 135678, at *4

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(E.D. Cal. Jan. 16, 2007) (finding no federal constitutional right to an Olsen review).

Discussion

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Plaintiff appears to contend that the failure to provide him with medical records or an

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Olsen review violated his Eighth Amendment rights. The Eighth Amendment’s prohibition

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against cruel and unusual punishment protects prisoners from inhumane conditions of

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confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials

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therefore have a “duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000) (citations omitted). Plaintiff’s allegations regarding an Olsen review of his medical records

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An “Olsen review” (or “Olson review”) is an administrative process that provides
prisoners with access to non-confidential information in their central files and medical records.
See 15 C.C.R. § 3450; see also Whitaker v. Crane, No. 2:13-cv-00505 KJM DAD P, 2014 WL
3895216, at *1 n.1 (E.D. Cal. Aug. 4, 2014) (describing Olsen review).
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do not implicate a violation of the Eighth Amendment’s prohibition against cruel and unusual

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punishment.

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IV.

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Plaintiff’s complaint fails to state a cognizable claim for relief. As the deficiencies

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identified by the Court cannot be cured by amendment, further leave to amend is not warranted.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (district court should grant leave to amend

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unless the pleading could not possibly be cured by the allegation of other facts); Hartmann v. Cal.

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Dep’t of Corrs. and Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny

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leave to amend when amendment would be futile.”)

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Conclusion and Recommendation

Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
district judge to this action.
Further, the Court HEREBY RECOMMENDS that this action be dismissed for failure to
state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A.

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These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendation, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 29, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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