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Anaya v. Herrington

April 12, 2010

RICHARD ERNEST ANAYA, PLAINTIFF,
v.
HERRINGTON, ET AL., DEFENDANTS.



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

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO FILE SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS RESPONSE DUE WITHIN 30 DAYS

(Doc. 14)

Order Following Screening Of First Amended Complaint

I. Background

Plaintiff Richard Ernest Anaya ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. On September 17, 2009, Plaintiff initiated this action by filing his complaint. On October 29, 2009, the Court dismissed the complaint, with leave to file an amended complaint within thirty days. On November 16, 2009, Plaintiff filed his 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). "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 (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 conclusions are not. Id. at 1949.

II. Summary of Amended Complaint

Plaintiff is incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as defendants warden Herrington, chief medical officer Lopez, medical doctor Chen, associate warden Keldgore, and correctional counselor J. White.

Plaintiff alleges that he was denied inmate appeals regarding medical treatment, ADA accommodations, single cell status, grab bars, and crutches by Defendant Herrington. (Pl's First Am. Compl.) Plaintiff alleges that defendant Chen, as Plaintiff's primary physician, denied his single cell status and request for follow-up care with a back specialist. (FAC 1C.) Plaintiff alleges that he has a permanent accommodation chrono which states that he has an infectious disease which makes him a medical risk of infection to any inmate who may be housed with him. (Id.) Plaintiff's exhibits submitted and incorporated by reference indicate that he suffers from a prolapsed rectum and thus suffers from incontinence.

Plaintiff alleges that Defendants Keldgore and White took away Plaintiff's single cell status and placed him in administrative segregation for disobeying an order to accept a cell mate. (Id.) Plaintiff alleges that he never said he would assault any inmate that was put in his cell, but rather tried to explain enemy concerns and how other inmates become hostile when they find out about Plaintiff's medical condition. (Id.) Plaintiff alleges that Defendant White assessed a rules violation against Plaintiff for failing to take a cell mate, even if he should not be double celled. (FAC 2D.)

Plaintiff alleges that Defendant Lopez as chief medical officer denied Plaintiff's appeal and is not providing a knee surgery which is causing Plaintiff acute wanton pain. (Id.) Plaintiff also alleges that Defendant Lopez is not providing follow-up care for Plaintiff's lower back. (Id.) Plaintiff seeks money damages.

III. Discussion

A. Eighth Amendment - Deliberate Indifference To A ...


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