(PC) Blackwell v. Dosuella et al, No. 2:2013cv02036 - Document 6 (E.D. Cal. 2014)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/2/2014 GRANTING plaintiff's 2 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; se rvice is appropriate for Albalos, E. Copley, D. Dosuella, Bennett Feinberg, Sahota and Torrella; the Clerk shall send plaintiff forms for service to be completed and returned within 30 days, along with the Notice of Submission; and RECOMMENDING that defendant Folsom State Prison be dismissed without leave to amend. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)
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(PC) Blackwell v. Dosuella et al Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ORLANDO BLACKWELL, 11 Plaintiff, 12 13 No. 2:13-cv-2036-TLN-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS D. DOSUELLA, et al., 14 Defendants. 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in 18 forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 20 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 II. Screening Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 Dockets.Justia.com 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S. 10 Ct. 1937, 1949 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 15 129 S. Ct. at 1949. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to 22 the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 III. 24 Screening Order The court has reviewed plaintiff’s complaint and for the limited purpose of § 1915A 25 screening, finds that it states a potentially cognizable Eighth Amendment deliberate indifference 26 to medical needs claim against defendants Albalos,1 Dosuella, Copley,2 Feinberg, Sahota,3 and 27 28 1 2 Plaintiff also refers to this defendant in the complaint with the alternate spelling of “Albuley.” Plaintiff also refers to this defendant in the complaint with the alternate spelling of “Copland.” 2 1 Torrella, based upon plaintiff’s allegations that their conduct or policies caused plaintiff to 2 experience four days of severe pain without relief after he completely ruptured his Achilles 3 tendon. 4 The complaint does not state a claim against Folsom State Prison, which is not a proper 5 defendant. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was violated, 7 and (2) that the alleged violation was committed by a person acting under the color of state law. 8 West v. Atkins, 487 U.S. 42, 48 (1988). Folsom State Prison is not a person. Moreover, state 9 agencies, such as CDCR and its prisons, are immune from suit under the Eleventh Amendment. 10 See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Lucas v. Dep’t of Corr., 66 11 F.3d 245, 248 (9th Cir. 1995) (per curiam) (holding that prisoner’s Eighth Amendment claims 12 against CDCR for damages and injunctive relief were barred by Eleventh Amendment immunity); 13 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment 14 immunity extends to state agencies). 15 Accordingly, plaintiff may proceed against defendants Albalos, Dosuella, Copley, 16 Feinberg, Sahota, and Torrella only, and defendant Folsom State Prison must be dismissed 17 without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth 18 Circuit case law, district courts are only required to grant leave to amend if a complaint can 19 possibly be saved. Courts are not required to grant leave to amend if a complaint lacks merit 20 entirely.”); see also Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] district court 21 should grant leave to amend even if no request to amend the pleading was made, unless it 22 determines that the pleading could not be cured by the allegation of other facts.”). 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s request to proceed in forma pauperis is granted. 25 ///// 26 ///// 27 28 3 Plaintiff also refers to this defendant in the complaint with the alternate spelling of “Shoata.” 3 1 2 3 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the CDCR filed concurrently herewith. 3. The allegations in the pleading are sufficient at least to state a potentially 4 cognizable Eighth Amendment deliberate indifference to medical needs claims 5 against defendants Albalos, Dosuella, Copley, Feinberg, Sahota, and Torrella. 6 4. The Clerk of the Court shall send plaintiff six USM-285 forms, one summons, an 7 8 instruction sheet and one copy of the October 1, 2013 complaint. 5. Within 30 days from service of this order, plaintiff shall complete the attached 9 Notice of Submission of Documents and submit it to the court with the completed 10 summons and USM-285 forms and seven copies of the endorsed October 1, 2013 11 complaint. 12 6. Upon receipt of the necessary materials, the court will direct the United States 13 Marshal to serve defendants pursuant to Federal Rule of Civil Procedure 4 without 14 payment of costs. Failure to comply with this order may result in this action being 15 dismissed. 16 17 Further, IT IS HEREBY RECOMMENDED that defendant Folsom State Prison be dismissed without leave to amend. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 23 within the specified time may waive the right to appeal the District Court’s order. Turner v. 24 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 Dated: July 2, 2014. 26 27 28 4 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 ORLANDO BLACKWELL, 9 Plaintiff, 10 11 No. 2:13-cv-2036-TLN-EFB P v. NOTICE OF SUBMISSION OF DOCUMENTS D. DOSUELLA, et al., 12 Defendants. 13 14 15 Plaintiff hereby submits the following documents in compliance with the court’s Screening Order: 16 17 1 completed summons form 18 6 completed forms USM-285 19 7 copies of the endorsed October 1, 2013 complaint 20 21 Dated: 22 23 ____________________________ Plaintiff 24 25 26 27 28 5
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