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McElroy v. Embery

August 11, 2008

LATWAHN MCELROY, PLAINTIFF,
v.
EMBERY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE

(Doc. 1)

RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Screening Requirement

Plaintiff Latwahn McElroy ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 25, 2007.

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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Summary of Plaintiff's Complaint

Plaintiff is currently housed at California State Prison - Sacramento. The events giving rise to the claims at issue in this action allegedly occurred at Kern Valley State Prison, where plaintiff was previously incarcerated. Plaintiff names R.N. Embery, R.N. Smith, Associate Warden Kay, yard physician Dr. Vasquez, orthopaedic expert John Doe, and the Department of Corrections as defendants. Plaintiff alleges that defendants collectively failed to provide him with proper and/or adequate medical treatment for a variety of ailments.

Plaintiff states that he suffers from a serious debilitating condition due to defendants' failure to attempt curative or palliative treatment. Plaintiff alleges that he suffers from deterioration of his right leg. Plaintiff alleges that defendant Embery failed to follow up on a leg brace prescribed to plaintiff because she ran out, and that the yard physician, presumably defendant Vasquez, did not administer treatment to stimulate and correct nerve and blood distribution.

Plaintiff also alleges that defendant Vasquez "failed to renew chronos and/or advise prison officials that [plaintiff] due to medical reasons and permanent shoulder damages plaintiff is unable to use restraints." Plaintiff alleges that defendants Embery and Smith failed to advise prison housing sergeants of his functional limitations, and also failed to administer various doctors' orders for medication refills and renewals for a seat cushion and egg-crate mattress, insoles, back brace, leg brace, anti-fungal treatment and soaking tub and solution, epsom salt, moisturizer, special soap, and inhalers.

Plaintiff further contends that he is prescribed a "liquid nutrition" because of his food allergies, bowel problems, and loss of appetite due to his right leg, and that since November 2006 defendant Smith has failed or refused to administer his nutrition.

Plaintiff further states that on April 7, 2007, he fell on his hip and face, causing his right eye to swell for "some time". Plaintiff alleges that ...


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