(PC) Shavers, Jr. v. Taber, et al.

Filing 18

ORDER signed by Magistrate Judge Jeremy D. Peterson on 09/16/22 ORDERING within 30 days from the service of this order, plaintiff must either file another Amended Complaint or advise me that he wishes to stand by his current complaint. The Clerk of Court is directed to send plaintiff a complaint form.(Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JESSE LEE SHAVERS, JR., 11 Plaintiff, 12 13 v. SCREENING ORDER THAT PLAINTIFF: (1) STAND BY HIS COMPLAINT SUBJECT TO A RECOMMENDATION OF DISMISSAL; OR TABER, et al., 14 Case No. 2:21-cv-01734-JDP (PC) Defendants. (2) FILE A SECOND AMENDED COMPLAINT 15 16 ECF No. 17 17 THIRTY-DAY DEADLINE 18 19 20 Plaintiff alleges that, while incarcerated at High Desert State Prison, defendants Taber and 21 Kelsey violated his rights under the Eighth Amendment and the Americans with Disabilities Act 22 (“ADA”) when they revoked prescriptions for unidentified “medical appliances” that addressed 23 an “ongoing medical issue.”1 ECF No. 17 at 3. His allegations are too vague to proceed past 24 screening. I will give plaintiff a final opportunity to amend before recommending this action be 25 dismissed. 26 27 28 1 Plaintiff also references a breach of contract claim, though he does not describe the contract at issue or how it was breached by defendants. ECF No. 17 at 3. 1 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 2 1 II. Analysis 2 Plaintiff alleges that he suffers from an “ongoing medical issue” and that, prior to being 3 sent to High Desert State Prison, he had been prescribed “medical appliances” as 4 accommodations. ECF No. 17 at 3. Plaintiff does not identify either the medical issue from 5 which he suffers or the medical appliances denied. Plaintiff is also vague as to his interactions 6 with defendants. He claims that defendant Kelsey had several racially charged exchanges with 7 him in the days preceding Taber’s revocation of his medical appliances. Id. Kelsey allegedly 8 told some unspecified lie to Taber, plaintiff’s physician, causing the latter to rescind plaintiff’s 9 prescriptions. Id. I cannot tell either if Taber is alleged to have acted mistakenly but in good 10 faith, or if plaintiff believes that Taber acted in concert with Kelsey. Plaintiff alleges that the 11 prison warden was made aware of his issues with the aforementioned defendants through the 12 prison grievance process but failed to take corrective action. Id. at 4. Here again, however, 13 plaintiff does not allege what facts his grievance apprised the warden of. These allegations are 14 too vague to state a cognizable claim against any defendant. See Ashcroft, 556 U.S. at 678 (“The 15 pleading standard Rule 8 announces does not require detailed factual allegations, but it demands 16 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). 17 Plaintiff may amend his complaint. If he chooses to do so, the amended complaint will 18 supersede the current one. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) 19 (en banc). This means that the amended complaint will need to be complete on its face without 20 reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 21 filed, the current complaint no longer serves any function. Therefore, in an amended complaint, 22 as in an original complaint, plaintiff will need to assert each claim and allege each defendant’s 23 involvement in sufficient detail. The amended complaint should be titled “Second Amended 24 Complaint” and refer to the appropriate case number. If plaintiff does not file an amended 25 complaint, I will recommend that this action be dismissed. 26 27 28 3 1 Accordingly, it is ORDERED that: 2 1. Within thirty days from the service of this order, plaintiff must either file another 3 Amended Complaint or advise me that he wishes to stand by his current complaint. If he selects 4 the latter option, I will recommend that this action be dismissed. 5 2. Failure to comply with this order may result in the dismissal of this action. 6 3. The Clerk of Court is directed to send plaintiff a complaint form. 7 8 IT IS SO ORDERED. 9 Dated: 10 11 September 16, 2022 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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