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Tholmer v. Yates

January 26, 2009

LIONELL THOLMER, PLAINTIFF,
v.
JAMES A. YATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin 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. 11) RESPONSE DUE WITHIN THIRTY DAYS

I. Screening Requirement

Plaintiff Lionell Tholmer ("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 12, 2006. On December 5, 2006, Plaintiff filed a first amended complaint.

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).

"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. Plaintiff's Claims

A. Summary of the Complaint

1. Medical Treatment

Plaintiff is a state prisoner currently housed at Pelican Bay State Prison in California. The events giving rise to the complaint occurred at Pleasant Valley State Prison (PVSP) in 2006.

Plaintiff was transferred to PVSP on January 11, 2006. The complaint alleges that sometime after January 11, 2006, Plaintiff began to suffer from severe back ache and fever. Plaintiff alleges that despite filling out multiple medical request forms and giving them to Medical Techincal Assistants in the prison, he did not receive medical attention until March 6, 2006. On March 6, Plaintiff was examined in the PVSP infirmary and diagnosed with a disease commonly known as valley fever. Plaintiff alleges that despite the medication he was prescribed to treat valley fever, he continued to suffer from chills, fever, inability to keep food down, body ache, and swelling.

The complaint states that on August 27, 2006, after complaining to a prison physician about shortness of breath, chest pain, and fever, the physician ordered that x-rays be taken of Plaintiff's chest the following day. On August 28, Plaintiff advised two unnamed prison nurses that he was having breathing problems and that a physician had ordered that x-rays be taken of his chest. The two nurses disregarded Plaintiff's request. From August 28 to September 13, Plaintiff repeatedly notified prison personnel that Plaintiff was having trouble breathing, among other symptoms, and that he needed chest x-rays. On September 13, Plaintiff was hospitalized at the Coalinga Regional Medical Center (CRMC) due to high fever and irregular heart rate. X-rays performed at CRMC revealed that Plaintiff was suffering from severe pneumonia.

2. Deprivation of Property

The complaint states that on or about April 18, 2006, a documented enemy of Plaintiff's, named Burris, was transferred into the same building as Plaintiff. Also on or about April 18, a close associate of Burris', Michael Smith, was assigned as Plaintiff's new cell-mate.*fn1 In response to the transfer of Burris and Smith into Plaintiff's building, Plaintiff approached an Inmate Men's Advisory Council member to explain the situation. Shortly thereafter, Plaintiff was summoned and interviewed by Defendant Scott. Plaintiff told Defendant Scott that Burris was a documented enemy and that Plaintiff's new cell-mate was an associate of Burris'. According to the complaint, Defendant Scott called the work exchange, where Plaintiff's new cell-mate Smith was working at the time, and instructed personnel that Smith was not to be released until notified by Defendant Scott. Defendant Scott then called Plaintiff's housing unit and advised Defendant Garcia that Defendant Scott was sending Plaintiff back to his cell to pack up his property and that Plaintiff was to be re-housed in a different building. Plaintiff packed up his belongings but was not allowed to remove them from his cell due to the need for a moving cart and an escort.

Sometime during the evening on April 19, 2006, Plaintiff left his cell to obtain medical treatment.*fn2 The complaint alleges that while Plaintiff was being held in the infirmary holding area, certain Defendants allowed cell-mate Smith to return to Plaintiff's cell unattended. The complaint states that Smith subsequently stole various articles of Plaintiff's property, although the complaint does not state exactly what was stolen.

3. Requests for ...


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