KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
As discussed below, plaintiff's complaint is dismissed with leave to amend.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'"
Plaintiff claims that defendants Jennifer Weaver, litigation coordinator, and Denise Stanly, HRT II, Custodian of health records, allegedly knew that defense counsel in
Plaintiff also claims that in October of 2015, he requested copies of his medical records for his deposition set for November 10, 2015, but that he was not timely provided the records, and that subsequent attempts to obtain his medical records resulted in only a partial release of his medical records. Despite seeking copies of the same medical records provided to defense counsel in No. 1:14-cv-1896, plaintiff claims defendant V. Neade repeatedly informed plaintiff that "we do not have to give you the same information that we gave to the Attorney General." (ECF No. 1 at 12.)
Further, plaintiff contends that defendant Neade delayed and denied plaintiff's access to his medical records in retaliation for plaintiff filing grievances concerning Neade's failure to provide plaintiff with all of the medical records requested. He claims other inmates were given 20 minutes to review the records before signing for them, while plaintiff was only given two minutes, and that Neade refused to provide plaintiff with the medical records provided to the Attorney General. On April 22, 2016, the third time plaintiff informed defendant Neade that medical records were still missing from the packet offered, plaintiff told Neade that "you are only doing this because of the inmate appeals . . . filed against you," and Neade responded, "you should not be filing 602[s] if you want us to help you." (ECF No. 1 at 9.) Because of his impending deadline to oppose the summary judgment motion, plaintiff filed a motion to compel in No. 1:14-cv-1896, but the court denied the motion "without prejudice to [plaintiff] first exhausting the prison's internal procedure to obtain those documents," citing plaintiff's familiarity and prior compliance with the procedure, as well as the medical records appended to his opposition to the motion for summary judgment. (ECF No. 1 at 81.)
Plaintiff contends these allegations demonstrate that defendants violated plaintiff's right to due process under the Fourteenth Amendment, and the First Amendment. Plaintiff seeks a declaratory judgment, injunctive relief, and money damages.
First, plaintiff challenges the release of his medical records to the Attorney General in plaintiff's case, No. 1:14-cv-1896. However, in No. 1:14-cv-1896, plaintiff claimed that the named defendants were deliberately indifferent to plaintiff's serious medical needs. Thus, plaintiff put his medical condition at issue in his civil rights complaint, and the Attorney General was entitled to discover plaintiff's medical records to the extent they were relevant to plaintiff's claims and to defenses in No. 1:14-cv-1896.
Second, in No. 1:14-cv-1896, plaintiff already litigated his claims concerning the release of medical records. Initially, the judge found no basis for a civil contempt finding:
Plaintiff's claims concerning the release of medical records to the attorney for defendants in
Third, to the extent plaintiff is attempting to obtain his medical records for a particular lawsuit, plaintiff must pursue such claims in such lawsuit. For example, plaintiff claims that in March of 2016, he wrote to his attorney to see if she had received his medical records. He claims that she received 1234 pages, but that his prior receipt for health records stated there were 1895 pages of medical records. (ECF No. 1 at 17.) Plaintiff does not identify the lawsuit in which an attorney represents him, but counsel must pursue any discovery discrepancy or dispute in her lawsuit for plaintiff.
Fourth, plaintiff states a potentially cognizable retaliation claim against defendant Neade.
"Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so."
In the instant complaint, plaintiff alleges that defendant Neade delayed and denied plaintiff's access to his medical records in retaliation for plaintiff filing grievances concerning Neade's failure to provide plaintiff with all of the medical records requested. Plaintiff's allegations concerning Neade's failure to provide plaintiff with the same medical records provided the Attorney General, and the same review time other inmates were permitted, as well as allegations concerning what Neade told plaintiff, suggest that her actions were taken in retaliation for the grievances plaintiff filed concerning his inability to obtain a complete copy of his medical records. Plaintiff may renew his retaliation claim against Neade in any amended complaint.
Fifth, to the extent plaintiff claims that defendants are unfairly rejecting and cancelling plaintiff's inmate appeals, such allegations are unavailing. The Due Process Clause protects plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under the law.
Sixth, plaintiff fails to state a cognizable civil rights claim against Dr. Bick, and fails to include specific charging allegations as to the remaining defendants.
The Civil Rights Act under which this action was filed provides as follows:
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff.
Although supervisory government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior,
Here, names Dr. Bick solely in his role as chief medical officer, "legally responsible for the overall operations of medical" at CMF (ECF No. 1 at 3), and is "in charge of all things that have to do with medical, including medical records" (ECF No. 1 at 15). However, such allegations are based on a theory of respondeat superior and therefore fail to state a cognizable claim. Plaintiff also claims that Dr. Bick participated in a "code of silence," but plaintiff alleges no facts personally connecting Dr. Bick with the alleged release or withholding of plaintiff's medical records, or with the retaliatory actions alleged against defendant Neade.
Similarly, plaintiff includes no allegations connecting defendants Weaver and Stanly to the alleged retaliatory actions of defendant Neade. There are no allegations connecting defendant Weaver to the partial release of medical records to plaintiff. As to defendant Stanly, although she is identified as the custodian of health records, plaintiff includes no factual allegations as to Stanly's involvement in the alleged partial release of medical records to plaintiff. Thus, such allegations are solely based on respondeat superior and fail to state a cognizable claim.
Finally, plaintiff's 144 page complaint is not short and plain as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly.
For all of the above reasons, the complaint must be dismissed. The court, however, grants leave to file an amended complaint. Plaintiff is granted leave to amend his complaint to include his retaliation claim against defendant Neade, and, if he can allege facts demonstrating retaliation on the part of defendant Stanly, he may amend to include such allegations. The remainder of plaintiff's allegations fail to state cognizable civil rights claims and should not be included in any amended complaint. Plaintiff should use the court's form for filing his amended complaint.
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions about which he complains resulted in a deprivation of plaintiff's constitutional rights.
Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). Unrelated claims against different defendants must be pursued in multiple lawsuits.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement exists because, as a general rule, an amended complaint supersedes the original complaint.
However, plaintiff is not required to re-submit his exhibits. (ECF No. 1 at 23-143.) Plaintiff may either refer to the exhibits by number, as each exhibit is presently marked, or he may ask the Clerk of the Court to re-append the exhibits to any amended complaint.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Plaintiff's complaint is dismissed.
4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court:
a. The completed Notice of Amendment; and
b. An original and one copy of the Amended Complaint, prepared on the court's form. Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must also bear the docket number assigned to this case and must be labeled "Amended Complaint."
Failure to file an amended complaint in accordance with this order may result in the dismissal of this action.
5. The Clerk of the Court shall send plaintiff the form for filing a civil rights complaint by a prisoner.
NOTICE OF AMENDMENT
Plaintiff hereby submits the following document in compliance with the court's order filed______________.