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Rojo v. FBOP

January 5, 2010

CARLOS ROMERO ROJO, PLAINTIFF,
v.
FBOP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A FEDERAL CLAIM (Doc. 20) OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations Following Screening of Amended Complaint

I. Screening Requirement

Plaintiff Carlos Romero Rojo, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on June 16, 2009, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. On December 15, 2009, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state any claims. Plaintiff filed an amended complaint on December 28, 2009.

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)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

II. Plaintiff's Eighth Amendment Medical Care Claim

A. Allegations

Plaintiff is currently housed at the Federal Correctional Institution in Adelanto, California. The events at issue in this action occurred at the United States Penitentiary in Atwater, California. In his amended complaint, Plaintiff names Warden Hector A. Rios, Assistant Health Care Administrator L. Mettreay, and Doctor Jon Franco as defendants, and is seeking money damages and medical treatment as relief for the alleged violation of his rights.

Plaintiff alleges that he has a life threatening liver problem, and suffers from Hepatitis C, cirrhosis, and syphilis. On June 4, 2009, Defendant Franco informed Plaintiff that he was not eligible for interferon treatment for his liver because he was "too far gone," and prescribed a medication for Plaintiff's liver disease which caused Plaintiff to break out in a sore and a body rash.

(Doc. 20, court record p. 3.) Plaintiff was in the hole at the time and when he showed his condition to Defendants Mettreay and Rios, both of them smirked and walked away from him.

Plaintiff also alleges that on June 4, 2009, he informed Defendant Franco that his band-aid implant needed replaced, and should have been replaced in 2008. Plaintiff alleges that Defendant Franco informed him he was going to die but refused to allow him to be taken to an outside doctor. Plaintiff alleges that since Franco concluded he did not want to help Plaintiff, he should have appointed another doctor for a second opinion and for further medical treatment. Plaintiff alleges his ...


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