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Gordon v. Welch

July 23, 2009

JARROD GORDON, PLAINTIFF,
v.
C.O. WELCH, 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. 1)

Screening Order

Plaintiff Jarrod Gordon 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 March 3, 2008. Plaintiff consented to jurisdiction of a U.S. Magistrate Judge on March 26, 2008.

I. Screening Requirement

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 § 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, supra, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'"), quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke 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 Claim

A. Summary of Complaint

Plaintiff, who is presently incarcerated at the California Substance Abuse Treatment Facility ("SATF"), seeks monetary and injunctive relief for injuries (medical deterioration) experienced while he was briefly incarcerated at North Kern State Prison ("NKSP"). Plaintiff, an Americans with Disabilities Act inmate, is partially paralyzed as a result of a spinal gunshot wound incurred prior to his tenure at NKSP. A December 2006 Disability Placement Program Verification identified Plaintiff as mobility impaired, requiring a left leg brace, level terrain and no stairs, and a lower bunk. The examining physician noted Plaintiff's "antalgic gait"*fn1 and "poor tolerance for walking."

Nonetheless, upon arrival at NKSP on January 7, 2007, he was assigned an upper bunk. Climbing in and jumping out of bed caused severe back pain and numbness in his right foot. Although he was promised an accommodation, none was made for two months, allegedly due to overcrowding. Plaintiff's physical condition deteriorated.

Plaintiff names as defendants the correctional officers who threatened Plaintiff with disciplinary action if he refused to "lock up" in his assigned cell: Welch, Person, Huerra, Gorey, Bievlve, and Smallie. Although an unnamed "warden" is included in the caption, the complaint neither identifies, nor sets forth any claims against, the warden.

B. Eighth Amendment Claim: Deliberate Indifference to Serious Medical Need

Although the complaint does not identify a constitutional basis for Plaintiff's claim, Plaintiff appears to allege that the Defendants were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment.

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). The two-part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, supra, 439 F.3d at 1096, quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Ibid. Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Ibid. (internal quotations omitted). Where a ...


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