-MJS (PC) Turach v. Brown et al, No. 1:2011cv01476 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 10/4/2011 recommending that 1 Prisoner Civil Rights Complaint be Dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/7/2011. (Lundstrom, T)
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-MJS (PC) Turach v. Brown et al Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 ISABEL TUBACH, CASE NO. 1:11-cv-1476-LJO-MJS (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATION FOR DISMISSAL OF PLAINTIFF’S COMPLAINT 10 v. 11 (ECF No. 1) JERRY BROWN et al., 12 Defendants. 13 / 14 15 16 Plaintiff Isabel Tubach (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 17 Plaintiff filed this action on August 26, 2011. (ECF No. 1.) Plaintiff’s Complaint is 18 before the Court for screening.1 19 I. SCREENING REQUIREMENT 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 23 raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which 24 relief may be granted, or that seek monetary relief from a defendant who is immune from 25 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 26 27 28 1 The Court judicially notices that Plaintiff has filed in excess of seventy-five (75) other federal com plaints sim ilar in character to the present. Dockets.Justia.com 1 thereof, that may have been paid, the court shall dismiss the case at any time if the court 2 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 3 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). A claim is legally frivolous when it lacks an 4 arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). 5 A complaint must contain “a short and plain statement of the claim showing that the 6 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 9 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 10 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 11 plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial 12 plausibility demands more than the mere possibility that a defendant committed 13 misconduct and, while factual allegations are accepted as true, legal conclusions are not. 14 Id. at 1949-50. 15 II. SUMMARY OF COMPLAINT 16 Plaintiff is housed at the Central California Women’s Facility. Plaintiff has named 17 the following individuals as defendants: 1) Jerry Brown2, 2) M. Guzman, an 3) R. Mitchell. 18 Plaintiff alleges as follows: 19 Defendants have denied her a biopsy on her tongue. (Compl. at 3.) Plaintiff has 20 cancer spreading to her mouth and has been asking for a biopsy for over a year. (Id.) A 21 “Doctor K” ordered the biopsy weeks ago, but Defendant Mitchell denied it. 22 Defendant Guzman is victimizing Plaintiff because he or she is part of a conspiracy to 23 murder Plaintiff. (Id.) Plaintiff asks that she be allowed to receive treatment for her cancer 24 and that Defendant Guzman stop putting “poisonous-substances” down her nose. (Id.) 25 Plaintiff also asks for nitroglycerin. (Id.) 26 27 2 Plaintiff apparently refers to the current governor of California. 28 -2- (Id.) 1 Plaintiff has complained to Defendant Brown about Defendant Guzman’s conduct, 2 about Defendant Guzman preventing doctors from doing a biopsy on her tongue, and 3 requesting an “ice chrono” that relieves the burning in Plaintiff’s tongue 4 Defendant Brown has ignored her requests. (Id.) Defendant Brown has given Defendant 5 Guzman authority to run the prison, and Defendant Guzman has been harassing Plaintiff 6 for 10 years in a “sadistic” and “inhuman” way. (Id. at 5.) Governor Brown has Plaintiff 7 watched because she works in “Central Intelligence American (C.I.A.) it is deny [her] equal 8 protection at laws and cruel and unusual punishment. He has violate [her] federal rights.” 9 (Id.) (Id. at 4) 10 Defendant Guzman has caused Plaintiff emotional distress, mental anguish, and 11 sent Plaintiff roommates to “put a poisonous-substance in [her] nose to cause [her] 12 physical pains like a physical torture.” (Id. at 6) One roommate was a sex-partner of 13 Defendant Guzman, and the other two roommates are mentally ill. (Id.) Defendant 14 Guzman has Plaintiff “under hypnotism” and “they”3 abuse Plaintiff and take advantage of 15 her. (Id.) Defendant Guzman’s treatment has resulted in Plaintiff suffering two heart 16 attacks. (Id. at 7) Plaintiff has informed the prison authorities of Defendant Guzman’s 17 actions, but they cannot stop him because Defendant Brown is the only one with authority 18 to do so. (Id.) 19 Defendant Mitchell was named as the chief doctor by Defendant Guzman. (Id.) 20 Defendant Mitchell has stopped Plaintiff from receiving nitroclycerine for her chest pain. 21 (Id. at 7-8.) He ordered the nurses to give her six tablets, but they only give her three. 22 According to Plaintiff, this was “an attempt to murder.” (Id. at 8.) Defendant Guzman has 23 also given poison to the person who pushes Plaintiff in her wheelchair. (Id.) A “Felix and 24 Vigil” poisoned Plaintiff in the medicine line, doctors line, and dinning room. 25 Defendant Guzman’s “officers sex-partner has to put the poison before [orgies].” (Id.) He4 26 27 28 3 4 Plaintiff appears to be referring to the room m ates and Defendant Guzm an. Plaintiff appears to be referring to Defendant Guzm an. -3- (Id.) 1 instructed the staff in the kitchen to not give her peanut butter, even though it is the only 2 food Plaintiff can eat. (Id. at 9) The roommates also take the food from Plaintiff’s hands. 3 It is “a conspiracy to murder [her].” (Id..) 4 Plaintiff previously sent a complaint to United States District Court in the Eastern 5 District of California in Fresno, California, against Defendant Guzman. (Id.) Plaintiff sent 6 the Complaint on June 10, 2011, but Defendant Guzman stopped it and sent it on June 22, 7 2011. (Id.) 8 Plaintiff asks the Court to order Defendant Mitchell to order a biopsy, since Plaintiff 9 can barely eat. (Id. at 10) Plaintiff also asks for an “ice chrono” to relieve the burning in 10 her tongue. (Id.) 11 III. ANALYSIS 12 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, 13 or immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia 14 Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not 15 itself a source of substantive rights, but merely provides a method for vindicating federal 16 rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 17 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that 18 a right secured by the Constitution or laws of the United States was violated, and (2) that 19 the alleged violation was committed by a person acting under the color of state law. See 20 West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 21 (9th Cir.1987). 22 Plaintiff primary claim appears to fall within the framework of an Eighth Amendment 23 claim for inadequate medical care against Defendants Brown, Guzman, and Mitchell. She 24 also appears to allege a First Amendment claim against Defendant Guzman for interfering 25 with her access to the courts. Lastly, she could be said to be attempting to allege an 26 Eighth Amendment claim against Defendants Brown and Guzman for cruel and unusual 27 punishment. 28 Based upon the pleading before it, this Court can conclude only that Plaintiff’s -4- 1 claims are legally frivolous. A claim is legally frivolous when it lacks an arguable basis in 2 either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Plaintiff’s claims lack an 3 arguable basis in fact. The following allegations are fantastic: 4 1. Defendant Guzman is part of a conspiracy to murder Plaintiff (one where the 5 alleged conspirators’ identity, motivation and methods are not even 6 suggested). (Compl. at 3.) 7 2. 8 9 (Compl. at 3.) 3. 10 11 Defendant Guzman has been harassing Plaintiff for 10 years in a “sadistic” and “inhuman” way. (Compl. at 5.) 4. 12 13 Defendant Guzman is putting “poisonous-substances” down her nose. Governor Brown has allowed Defendant Guzman to abuse Plaintiff because Plaintiff works in “Central Intelligence American (C.I.A.)”. (Compl. at 5.) 5. Defendant Guzman assigned Plaintiff roommates (one a sex partner of 14 Guzman and the other two mentally ill) with instructions to “put a poisonous- 15 substance in [her] nose to cause [her] physical pains like a physical torture.” 16 (Compl. at 6.) 17 6. 18 19 Plaintiff and take advantage of her. (Compl. at 3.) 7. 20 21 8. Defendant Guzman has given poison to the person who pushes Plaintiff in her wheelchair. (Compl. at 8.) 9. 24 25 Defendant Mitchell has given Plaintiff less nitroglycerin than she needs because he is attempting to murder her. (Compl. at 8.) 22 23 Defendant Guzman has Plaintiff “under hypnotism” and “they”5 abuse An otherwise unidentified “Felix and Vigil” poisoned Plaintiff in the medicine line, doctors line, and dinning room. (Compl. at 8.) 10. 26 Defendant Guzman’s “officers sex-partner has to put the poison before [orgies].” (Compl. at 8.) 27 28 5 Plaintiff appears to be referring to the room m ates and Defendant Guzm an. -5- 1 11. 2 He6 instructed the staff in the kitchen to not give her peanut butter, even though it is the only food Plaintiff can eat. (Compl. at 9.) 3 Given Plaintiff’s history of filing Complaints such as this and the absolute incredibility 4 of almost all of current allegations, even those which otherwise might potentially exhibit 5 some connection with reality should be disregarded as having no arguable basis in fact. 6 Plaintiff is charged with the obligation of setting forth “sufficient factual matter, 7 accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 8 (quoting Twombly, 550 U.S. at 555). A claim is legally frivolous when it lacks an arguable 9 basis in either law or fact. Plaintiff has failed to meet this pleading requirement. Plaintiff’s 10 claims as asserted lack an arguable basis in fact. They should be dismissed without leave 11 to amend on the grounds they are legally frivolous. Neitzke, 490 U.S. at 325. 12 IV. CONCLUSION AND RECOMMENDATION 13 The Court finds that Plaintiff’s Complaint fails to state a claim upon which relief may 14 be granted. Although the Court is typically required to allow a plaintiff the opportunity to 15 amend her pleading to address the deficiencies noted by the Court during screening, the 16 Court finds that amendment would be futile in this case. For the reasons stated above, the 17 Court finds that Plaintiff’s Complaint fails to set forth “sufficient factual matter, accepted as 18 true, to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting 19 Twombly, 550 U.S. at 555). 20 Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s Complaint be dismissed, 21 with prejudice, for failure to state a claim under section 1983 and that Plaintiff not be given 22 leave to amend. 23 These Findings and Recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 25 Within thirty (30) days after being served with these Findings and Recommendations, any 26 party may file written objections with the Court and serve a copy on all parties. Such a 27 28 6 Plaintiff appears to be referring to Defendant Guzm an. -6- 1 document should be captioned "Objections to Magistrate Judge's Findings and 2 Recommendations." Any reply to the objections shall be served and filed within ten days 3 after service of the objections. The parties are advised that failure to file objections within 4 the specified time may waive the right to appeal the District Court's order. Martinez v. Y1 5 st, 951 F.2d 1153 (9th Cir. 1991). 6 7 8 9 10 IT IS SO ORDERED. Dated: ci4d6 October 4, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-
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