Flores v. Lee et al

Filing 12

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/11/2018 DIRECTING the Clerk to randomly assign a district judge to this action. IT IS RECOMMENDED, for the reasons set forth in the 8 initial screening order, Fede ral Receiver J. Clark Kelso should be dismissed from this action and this action should be dismissed without further leave to amend for failure to state a cognizable claim. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY FLORES,

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Plaintiff,

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No. 2:16-cv-2947 AC P

v.

ORDER and

B. LEE, et al.,

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FINDINGS AND RECOMMENDATIONS
Defendants.

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I.

Introduction

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Plaintiff is a state prisoner incarcerated at Mule Creek State Prison (MCSP), under the

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authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff

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proceeds pro se and in forma pauperis with a First Amended Complaint (FAC) filed pursuant to

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42 U.S.C. § 1983, challenging plaintiff’s medical care when he was previously incarcerated at

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High Desert State Prison (HDSP). Plaintiff has consented to the jurisdiction of the undersigned

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Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). See

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ECF No. 4.
The court now screens the FAC, filed October 12, 2017, pursuant to 28 U.S.C. § 1915A.

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For the reasons set forth below, the undersigned recommends the dismissal of this case for failure

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to state a claim, and the specific dismissal of defendant Kelso.

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II.

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Screening of Plaintiff’s First Amended Complaint
A.

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Legal Standards for Screening Prisoner Civil Rights Complaint

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v.

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Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

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1984).
Rule 8 of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement

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of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly at 555). To survive dismissal for failure to

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state a claim, “a complaint must contain sufficient factual matter, accepted as true, to “state a

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claim to relief that is plausible on its face.’” Iqbal at 678 (quoting Twombly at 570). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged. The plausibility

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standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility

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that a defendant has acted unlawfully.” Id. (citing Twombly at 556). “Where a complaint pleads

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facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between

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possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly at 557).

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“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however

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inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

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lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
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106 (1976) (internal quotation marks omitted)). See also Fed. R. Civ. P. 8(e) (“Pleadings shall be

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so construed as to do justice.”). Additionally, a pro se litigant is entitled to notice of the

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deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies

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cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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B.

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Plaintiff’s Allegations

By order filed September 18, 2017, this court granted plaintiff’s application to proceed in

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forma pauperis and dismissed the original complaint with leave to amend. See ECF No. 8. The

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original complaint challenged plaintiff’s medical care, physical therapy and medication to treat

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his chronic pain and mobility issues associated with his severe congenital spinal scoliosis.

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Plaintiff sought damages; immediate access to a TENS unit; and referral to a specialist for

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evaluation and treatment, including an MRI and assessment of plaintiff’s pain medications. The

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complaint named defendants Clark Kelso (the federal receiver overseeing CDCR’s medical care

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system), HDSP Warden Eliot Spearman, HDSP Chief Physician Lee, and HDSP physicians

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Griffith and Yusufzai. See ECF No. 1.

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The court dismissed the original complaint for failure to state a cognizable claim for

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deliberate indifference to plaintiff’s serious medical needs,1 and for failure to “link” pertinent

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factual allegations with the challenged conduct of specific defendants. See ECF No. 8. The court

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provided plaintiff guidance in stating a cognizable deliberate indifference claim against specific

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defendants, and dismissed defendant Clark Kelso for failure to state a claim.

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In his FAC, filed October 12, 2017, plaintiff alleges one claim: “denied proper medical

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care.” ECF No. 11 at 3. Plaintiff again seeks monetary damages and injunctive relief, the latter

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including an MRI and referral to a specialist, and access to a TENS unit until he obtains an MRI.

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The FAC names defendants Spearman (HDSP Warden), Miranda (Physician Assistant) and Lee

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(Physician), but the factual allegations again reference defendants collectively as “they” or

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“them,” without identifying who denied plaintiff’s requests for stronger pain medications, access

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to a TENS unit, and/or referral to a specialist and for an MRI. The undersigned’s review of

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The complaint alleged only in general terms that plaintiff’s care and treatment was deficient.
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plaintiff’s exhibits (see ECF No. 1 at 4-33, and ECF No. 11 at 5-9) fails to provide the requisite

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linkage between plaintiff’s factual allegations and the conduct of the identified defendants. The

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only link appears to be a First Level Decision issued by Dr. Lee, partially granting plaintiff’s

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health appeal. See ECF No. 1 at 13-4. However, review of the decision does not clarify the

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alleged roles of the named defendants, and plaintiff cannot pursue a claim premised on the failure

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of an official to favorably resolve his grievance. See e.g. Buckley v. Barlow, 997 F.2d 494, 495

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(8th Cir. 1993).

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C.

Analysis

Despite the earlier guidance provided by the court, the FAC reflects the same deficiencies

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as the original complaint. Amendment has not improved the complaint, and it remains unclear

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why plaintiff is attempting to make claims against these specific defendants. Moreover,

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plaintiff’s transfer from HDSP to MCSP appears to have rendered moot his claims for injunctive

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relief. See e.g. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (“when a prisoner is moved

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from a prison, his action will usually become moot as to conditions at that particular facility”).

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For these reasons, the undersigned finds that further amendment of the complaint would be futile

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and will therefore recommend dismissal of this action. “A district court may deny leave to amend

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when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013).

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Dismissal of this action would not limit plaintiff’s ability to challenge, in a new action, his

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medical treatment at MCSP, provided he clearly identifies the who, what, where and when of

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each claim.

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III.

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For the foregoing reasons, the Clerk of Court is HEREBY DIRECTED to randomly assign

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Conclusion

a district judge to this action.

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Further, IT IS HEREBY RECOMMENDED that:

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1. For the reasons set forth in the undersigned’s initial screening order, see ECF No. 8 at

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4, Federal Receiver J. Clark Kelso should be dismissed from this action.
2. This action should be dismissed without further leave to amend for failure to state a
cognizable claim.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one (21)

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

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: May 11, 2018

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