Diaz v. Fox et al

Filing 21

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/19/2015 ORDERING that service is appropriate for Ferreira, Stankiewicz. The Clerk shall send plaintiff forms for service to be completed and returned within 30 days, along with the Notice of Submission. IT IS RECOMMENDED that all defendants and claims be dismissed from this action except Eighth Amendment deliberate indifference claims against Ferreira and Stankiewicz. Referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MIGUEL DIAZ,

12

Plaintiff,

13
14

No. 2:14-cv-2705 JAM CKD P

v.

ORDER AND

R. FOX, et al.,

15

FINDINGS AND RECOMMENDATIONS
Defendants.

16
17
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief

18
19

pursuant to 42 U.S.C. § 1983. On January 20, 2015, plaintiff’s original complaint was dismissed

20

for failure to state a claim. (ECF No. 7.) On May 28, 2015, the undersigned found plaintiff’s

21

first amended complaint to fail to cure the defects of the original complaint. (ECF No. 13.)

22

Plaintiff has filed a second amended complaint, now before the court for screening. (ECF No.

23

20.) See 28 U.S.C. § 1915A(a).
Plaintiff’s allegations concern his medical need for diabetic snacks while incarcerated at

24
25

the California Medical Facility.1 He names as defendants prison officials, medical staff, food

26

service workers, and the reviewers of plaintiff’s inmate appeals on this subject. As to all but two

27
28

1

In May 2015, plaintiff was issued a “diet card” to present to kitchen staff so that he could
receive the snacks. The card is valid through mid-November 2015. (ECF No. 20 at 3, 19.)
1

1

defendants, plaintiff has not alleged the elements of an Eighth Amendment deliberate indifference

2

claim. (See ECF No. 7 at 3-4.) However, construing the complaint in plaintiff’s favor, the

3

undersigned concludes that he has stated deliberate indifference claims against two food service

4

workers, Ferreira and Stankiewicz.

5

Plaintiff also alleges these two defendants retaliated against him in violation of the First

6

Amendment. Ferreira “retaliated against the plaintiff for refusing to withdraw his

7

appeal/complaint against him” by tearing open plaintiff’s bag on one occasion. (Id. at 2.)

8

Plaintiff attaches a July 2014 request for accommodation in which he stated that Ferreira and

9

other kitchen staff failed to provide him diabetic snacks per his medical chrono. (Id. at 14.)

10

Plaintiff does not specify when Ferreira tore open his bag or allege any threatening statements by

11

Ferreira, but asserts that Ferreira “took these actions to humiliate and intimidate me from

12

pursuing further action and to stop pursuing the administrative appeals process[.]” (Id. at 2.) As

13

in the original complaint, his allegations are too vague and conclusory to state a First Amendment

14

claim.

15

Plaintiff alleges that Stankiewicz “threatened to write a false 115 disciplinary charge for

16

requesting doctor prescribed medical treatments for my diabetes.” (Id. at 3.) As in the original

17

complaint, these brief and conclusory allegations fail to state a First Amendment claim.

18
19

In sum, the undersigned will recommend that all defendants and claims be dismissed
except for Eighth Amendment claims against Ferreira and Stankiewicz.

20

Accordingly, IT IS HEREBY ORDERED that:

21

1. Service is appropriate for the following defendants: Ferreira and Stankiewicz.

22

2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an

23
24

instruction sheet and a copy of the second amended complaint filed September 29, 2015.
3. Within thirty days from the date of this order, plaintiff shall complete the attached

25

Notice of Submission of Documents and submit the following documents to the court:

26

a. The completed Notice of Submission of Documents;

27

b. One completed summons;

28

c. One completed USM-285 form for each defendant listed in number 1 above;
2

1

d. Three copies of the endorsed amended complaint filed September 29, 2015.

2

4. Plaintiff need not attempt service on defendants and need not request waiver of service.

3

Upon receipt of the above-described documents, the court will direct the United States Marshal to

4

serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

5

of costs.

6

IT IS HEREBY RECOMMENDED that all defendants and claims be dismissed from this

7

action except Eighth Amendment deliberate indifference claims against Ferreira and Stankiewicz.

8

These findings and recommendations are submitted to the United States District Judge

9

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

10

after being served with these findings and recommendations, plaintiff may file written objections

11

with the court. Such a document should be captioned “Objections to Magistrate Judge's Findings

12

and Recommendations.” Plaintiff is advised that failure to file objections within the specified

13

time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

14

(9th Cir. 1991).

15

Dated: October 19, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22

2 / diaz2705.sac_fr

23
24
25
26
27
28
3

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11
12

MIGUEL DIAZ,

13
14
15

No. 2:14-cv-2705 JAM CKD P
Plaintiff,

v.

NOTICE OF SUBMISSION OF
DOCUMENTS

R. FOX, et al.,

16

Defendants.

17
18
19

Plaintiff hereby submits the following documents in compliance with the court's order
filed _____________________:

20

____

completed summons form

21

____

completed USM-285 forms

22

____

copies of the ___________________
Complaint

23
24

DATED:

25
26
27

________________________________

28

Plaintiff
4