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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, 12 13 14 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, 15 Defendant. (ECF No. 17) 16 FOURTEEN-DAY DEADLINE 17 18 Findings and Recommendations 19 20 Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this action under 42 U.S.C. § 1983. Plaintiff initiated this action on June 17, 2016, in 22 the Northern District of California. (ECF No. 1.) On October 27, 2016, the case was transferred 23 to this district. (ECF No. 6.) Plaintiff’s first amended complaint, filed on July 13, 2017, is 24 currently before the Court for screening. (ECF No. 17.) 25 I. Screening Requirement and Standard 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 28 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 1 1 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 2 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(A)(b)(1), (2); 28 3 U.S.C. § 1915(e)(2)(B)(ii). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 8 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 9 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 10 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 11 (internal quotation marks and citation omitted). 12 To survive screening, Plaintiff’s claims must be facially plausible, which requires 13 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 14 for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks omitted); 15 Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that 16 a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of 17 satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks 18 omitted); Moss, 572 F.3d at 969. Courts are required to liberally construe pro se prisoner 19 complaints. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). Plaintiff’s Allegations 20 II. 21 Plaintiff is currently incarcerated at Salinas Valley State Prison in Soledad, California. 22 The events in the complaint are alleged to have occurred while Plaintiff housed at the California 23 Substance Abuse Treatment Facility in Corcoran, California. 24 defendants: (1) Warden D. Davey; (2) Deputy Director J. Lewis, M.D.; and (3) Court-Appointed 25 Federal Receiver. Plaintiff names the following 26 Plaintiff alleges that his Eighth Amendment right to medical records has been violated by 27 defendants. Plaintiff contends that on November 20, 2015, and January 7, 2016, he was denied 28 his medical records. (ECF No. 17 at p. 4.) 2 1 Plaintiff further alleges as follows: 2 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. 3 4 5 6 7 8 9 10 (ECF No. 17 at p. 7.) 11 III. 12 Plaintiff asserts a claim against defendants for the apparent failure to provide him with an 13 “Olsen review” of his medical records.1 Plaintiff has no federal constitutional right to an Olsen 14 review or copies of his records. See Stockton v. Billings, No. 1:10-cv-00757-GBC (PC), 2011 15 WL 1459180, *2, *4 (E.D. Cal. Apr. 15, 2011) (finding no protected liberty interest in receiving 16 copies of documents from prison file and no federal constitutional right to an Olson review); 17 Johnson v. Avenal State Prison Warden, No. CV F 04 5845 AWI LJO P, 2007 WL 135678, at *4 18 (E.D. Cal. Jan. 16, 2007) (finding no federal constitutional right to an Olsen review). Discussion 19 Plaintiff appears to contend that the failure to provide him with medical records or an 20 Olsen review violated his Eighth Amendment rights. The Eighth Amendment’s prohibition 21 against cruel and unusual punishment protects prisoners from inhumane conditions of 22 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials 23 therefore have a “duty to ensure that prisoners are provided adequate shelter, food, clothing, 24 sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 25 2000) (citations omitted). Plaintiff’s allegations regarding an Olsen review of his medical records 26 1 27 28 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). 3 1 do not implicate a violation of the Eighth Amendment’s prohibition against cruel and unusual 2 punishment. 3 IV. 4 Plaintiff’s complaint fails to state a cognizable claim for relief. As the deficiencies 5 identified by the Court cannot be cured by amendment, further leave to amend is not warranted. 6 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (district court should grant leave to amend 7 unless the pleading could not possibly be cured by the allegation of other facts); Hartmann v. Cal. 8 Dep’t of Corrs. and Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny 9 leave to amend when amendment would be futile.”) 10 11 12 13 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. 14 These Findings and Recommendation will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 16 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 19 specified time may result in the waiver of the “right to challenge the magistrate’s factual 20 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 IT IS SO ORDERED. Dated: /s/ Barbara January 29, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4

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