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Wafer v. Suesberry

July 16, 2010

ANTHONY D. WAFER, PLAINTIFF,
v.
W. SUESBERRY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S SECOND AMENDED COMPLAINT BE DISMISSED

(Doc. 17)

OBJECTIONS DUE WITHIN 30 DAYS

Plaintiff Anthony D. Wafer ("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 is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is currently incarcerated at Centinela State Prison in Imperial, California. However, the events described in Plaintiff's complaint occurred while Plaintiff was incarcerated at the California State Prison in Corcoran, California ("CSP-Corcoran"). Plaintiff is suing under Section 1983 for the violation of his rights under the Eighth Amendment. Plaintiff names W. Suesberry (doctor), Yamaguchi (doctor), Greenough (doctor), McGinness (chief medical officer), M. Hodge-Wilkins (appeals examiner), N. Grannis (chief of inmate appeals), T. Kimura-Yip (staff service manager), Reynolds (doctor), K. Pacheco (registered nurse), John/Jane Doe #1 (medical staff), D. Adams (warden) and T. Hasadsir (doctor) as defendants.*fn1 For the reasons set forth below, the Court finds that Plaintiff's second amended complaint fails to state any claims upon which relief can be granted under Section 1983. The Court will recommend that Plaintiff's claims be dismissed, without leave to amend.

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).

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true.

Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

II. Background

A. Procedural Background

Plaintiff filed the original complaint in this action on June 18, 2007. (Doc. #1.) Plaintiff's original complaint was screened pursuant to 28 U.S.C. § 1915A on February 22, 2008. (Doc # 9.) The Court found that Plaintiff's original complaint failed to state any claims upon which relief can be granted and dismissed it, with leave to file an amended complaint. Plaintiff filed his first amended complaint on March 28, 2008. (Doc. #11.) The Court screened Plaintiff's first amended complaint on May 15, 2009. (Doc. #13.) The Court again dismissed Plaintiff's complaint for failing to state any claims and granted Plaintiff leave to file a second amended complaint. Plaintiff filed his second amended complaint on July 23, 2009. (Doc. #17.) This action proceeds on Plaintiff's second amended complaint.

B. Factual Background

Plaintiff's second amended complaint raises claims under Section 1983 for Defendants' alleged deliberate indifference toward Plaintiff's medical needs. Plaintiff's claims concern the medical treatment he received for "keloids" that formed on the right side of Plaintiff's head.

On April 24, 2003, Defendant W. Suesberry removed a keloid on the right side of Plaintiff's head. The surgery was performed at Delano Regional Medical Center. Plaintiff complains that Suesberry also performed a "skingraft" on the "right front neck area" without Plaintiff's permission to remove "skin & flesh" from that area to be sewn onto the area where the keloid was removed. (2nd Am. Compl. 4, ECF No. 17.*fn2

When Plaintiff returned to CSP-Corcoran after the surgery, Plaintiff was informed that Suesberry did not order any pain medication for Plaintiff. Plaintiff asked medical staff how to obtain treatment for the pain and swelling he was experiencing and medication to prevent further infection. Plaintiff was told that no medication had been prescribed. Plaintiff contends that Suesberry's failure to prescribe medication caused a second keloid to form. Plaintiff alleges that Suesberry "knew the risk of possible harm to plaintiff if no follow up medical treatment was rendered . . . due to ...


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