Opinion
No. 2:14-cv-2705 JAM CKD P
10-19-2015
MIGUEL DIAZ, Plaintiff, v. R. FOX, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief pursuant to 42 U.S.C. § 1983. On January 20, 2015, plaintiff's original complaint was dismissed for failure to state a claim. (ECF No. 7.) On May 28, 2015, the undersigned found plaintiff's first amended complaint to fail to cure the defects of the original complaint. (ECF No. 13.) Plaintiff has filed a second amended complaint, now before the court for screening. (ECF No. 20.) See 28 U.S.C. § 1915A(a).
Plaintiff's allegations concern his medical need for diabetic snacks while incarcerated at the California Medical Facility. He names as defendants prison officials, medical staff, food service workers, and the reviewers of plaintiff's inmate appeals on this subject. As to all but two defendants, plaintiff has not alleged the elements of an Eighth Amendment deliberate indifference claim. (See ECF No. 7 at 3-4.) However, construing the complaint in plaintiff's favor, the undersigned concludes that he has stated deliberate indifference claims against two food service workers, Ferreira and Stankiewicz.
In May 2015, plaintiff was issued a "diet card" to present to kitchen staff so that he could receive the snacks. The card is valid through mid-November 2015. (ECF No. 20 at 3, 19.)
Plaintiff also alleges these two defendants retaliated against him in violation of the First Amendment. Ferreira "retaliated against the plaintiff for refusing to withdraw his appeal/complaint against him" by tearing open plaintiff's bag on one occasion. (Id. at 2.) Plaintiff attaches a July 2014 request for accommodation in which he stated that Ferreira and other kitchen staff failed to provide him diabetic snacks per his medical chrono. (Id. at 14.) Plaintiff does not specify when Ferreira tore open his bag or allege any threatening statements by Ferreira, but asserts that Ferreira "took these actions to humiliate and intimidate me from pursuing further action and to stop pursuing the administrative appeals process[.]" (Id. at 2.) As in the original complaint, his allegations are too vague and conclusory to state a First Amendment claim.
Plaintiff alleges that Stankiewicz "threatened to write a false 115 disciplinary charge for requesting doctor prescribed medical treatments for my diabetes." (Id. at 3.) As in the original complaint, these brief and conclusory allegations fail to state a First Amendment claim.
In sum, the undersigned will recommend that all defendants and claims be dismissed except for Eighth Amendment claims against Ferreira and Stankiewicz.
Accordingly, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following defendants: Ferreira and Stankiewicz.
2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an instruction sheet and a copy of the second amended complaint filed September 29, 2015.
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 1 above; d. Three copies of the endorsed amended complaint filed September 29, 2015.
4. Plaintiff need not attempt service on defendants and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
IT IS HEREBY RECOMMENDED that all defendants and claims be dismissed from this action except Eighth Amendment deliberate indifference claims against Ferreira and Stankiewicz.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: October 19, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
2 / diaz2705.sac_fr
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed __________:
___ completed summons form
___ completed USM-285 forms
___ copies of the __________
Complaint
/s/_________
Plaintiff