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Bean v. Steinhauser

United States District Court, Ninth Circuit

November 18, 2013

Leonard Bean, Plaintiff,
v.
Gale Steinhauser, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Leonard Bean, who is confined in the Arizona State Prison Complex-Florence in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss the Complaint with leave to amend.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 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 pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). Plaintiff's Complaint will be dismissed failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.

III. Complaint

Plaintiff alleges three counts of denial of constitutionally adequate medical care. In Count I, Plaintiff alleges that prison officials "have acted with deliberate indifference that a substantial risk of serious harm exists." In Count II, Plaintiff alleges that he has been "denied medically appropriate oral medications for his hepatitis disease." In Count III, Plaintiff alleges that he has been denied treatment under the Hepatitis-C protocol because the Arizona Department of Corrections (ADOC) "think[s] [Plaintiff] has a shorter sentence." Plaintiff names as Defendants Dr. Gale Steinhauser and Dr. Michael Lesac, whom Plaintiff identifies as Primary Health Care Providers for ADOC. Plaintiff seeks testing and treatment for Hepatitis-C and damages.

It is difficult to distill the actual factual allegations in Plaintiff's Complaint because they are scattered throughout the twenty-page document, which contains numerous recitations of legal standards, citations to cases and statutes, and other conclusory statements. To the extent they are discernible, Plaintiff alleges the following: Plaintiff is serving a "life sentence 25-years flat from the State of Florida prison" for first-degree murder and has been in ADOC custody since 2005. Plaintiff has Hepatitis-C, which has "been poorly controlled since 2005." Plaintiff states that he "never received any antiviral treatment or medications prescribed for him" and "has never been prescribed the correct medications to protect" him from viruses that attack the liver. In addition, Plaintiff has not been tested "to determine the particular virus genotype." Plaintiff "has never been giv[en] adequate care to treat his liver function and never been refer[ed] to an outside consultant on a yearly basis for his Hepatitis C and HCV genotype."

Plaintiff was sent to St. Mary's Hospital in September 2010, where a blood screen indicated he had "elevated levels of AST, ALT and bilirubin, and a decrease in blood platelets. These results were consistent with a diagnosis of liver disease [as] well as HCV." At some point later, "ADOC Program Evaluation Administrator Health Services Contract Monitoring Bureau advised [Plaintiff that] the results were once again abnormal and consistent with liver disease and HCV." On November 8, 2010, "the staff physician at Central Office indicated to Bean that he had tested positive for HCV; the doctor also confi[r]med that [Plaintiff's] minimum sentence extended through June 2011. This... would have allowed enough time for at least the 24-week treatment protocol if [Plaintiff's] HCV were genotype II or III. However, the doctor did no genotype testing to ...


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