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Lowe v. McGuinness

September 25, 2009

DARRELL LOWE, PLAINTIFF,
v.
WILLIAM J. MCGUINNESS, ET AL., DEFENDANTS.



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

ORDER REQUIRING PLAINTIFF TO EITHER FILE AN AMENDED COMPLAINT OR NOTIFY THE COURT THAT HE IS WILLING TO PROCEED ONLY AGAINST DEFENDANTS RAHIMIFAR, MCGUINNESS AND CALL THIRTY-DAY DEADLINE

(Doc. 1)

Screening Order

This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Darrell Lowe, a state prisoner proceeding pro se and in forma pauperis. On April 22, 2009, Plaintiff filed a complaint initiating this action.

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).

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

II. Summary of Plaintiff's Complaint

Plaintiff is housed at Kern Valley State Prison in Delano, California. The events giving rise to this action allegedly occurred at California State Prison - Corcoran ("CSP-Corcoran"). Plaintiff names Chief Medical Officer William McGuinness, Registered Nurse Mary Call, Warden Derral G. Adams, Sergeant Anthony Morrison and Dr. Majid Rahimifar as defendants.

A. Medical Care Claim

1. Defendants Rahimifar and McGuinness

Plaintiff identifies defendant Rahimifar as a neurosurgeon contracted with CSP-Corcoran. Plaintiff alleges that on February 28, 2006 defendant Rahimifar prescribed epidural shots for Plaintiff to alleviate his pain. Plaintiff states that the treatment required the approval of defendant McGuinness, who did not approve the treatment.

Plaintiff states that on June 22, 2006 plaintiff underwent surgery for degenerative disc disease. On November 21, 2006, defendant Rahimifar observed a displaced cage and ordered Plaintiff to return so that defendant could correct the procedure. Plaintiff alleges that defendant McGuinness refused to approve the follow-up, causing Plaintiff severe pain and leaving him partially disabled.

Plaintiff states that he underwent a second surgery on April 30, 2007 ,and was discharged on May 2, 2007. Plaintiff Plaintiff states that he was ordered to stay in bed for four months. Plaintiff alleges that defendant McGuinness failed to approve the order, causing Plaintiff to suffer further pain. Plaintiff alleges that on May 2, 2007, ...


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