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Bury v. Clark

November 5, 2010

LARRY BURY, PLAINTIFF,
v.
KEN CLARK, ET AL., DEFENDANTS.



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

ORDER DISMISSING CERTAIN CLAIMS (DOCS. 1, 7)

Screening Order

I. Background

Plaintiff Larry Bury ("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 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on February 8, 2010. On October 12, 2010, the Court screened Plaintiff's complaint and found that it stated cognizable claims against Defendants E. Williams and Moto for deliberate indifference to a serious medical need in violation of the Eighth Amendment. (Doc. 6.) Plaintiff failed to state any other claims. Plaintiff was ordered to either file an amended complaint or notify the Court of his willingness to proceed only on the cognizable claims. On November 4, 2010, Plaintiff notified the Court that he wished to proceed only against Defendants E. Williams and Moto. (Doc. 7.) The Court issues the following order.

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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary Of Complaint

Plaintiff was incarcerated at California Substance Abuse Treatment Facility ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants warden Ken Clark, Sergeant E. Williams, correctional officer Moto, and John Does 1 through 5.

Plaintiff alleges the following. On November 5, 2008, at 1135 hours, Plaintiff, while in his cell, began having severe chest pains, diminished motor skills, confusion, difficult breathing, and a face drop. His left eye filled with blood, blinding him in that eye. At approximately 1145 hours, Defendant Moto arrived at Plaintiff's cell for a routine count whereupon Plaintiff and his cellmate informed Defendant Moto of the symptoms he was suffering, including the chest pain, and showed him his left eye. Defendant Moto left to notify Defendant E. Williams of Plaintiff's symptoms. Approximately ten minutes later, Defendant Moto returned. Defendant Moto informed Plaintiff that Defendant Williams said, "No ER" and that Plaintiff "would be seen in the morning."

Plaintiff believes that a friend found Plaintiff in the yard at approximately 900 hours the next day, in a state of confusion. The friend escorted Plaintiff to medical clinic. Doctor Ratman examined Plaintiff and found that he had obvious symptoms of a stroke. Plaintiff was immediately transferred to the Emergency Room at San Joaquin Valley Hospital in Bakersfield. Plaintiff had been diagnosed with a Transient Ischemic Attack.

Plaintiff contends that he had obvious symptoms of a stroke and that any person with severe chest pains should immediately receive medical help. Plaintiff contends that all correctional staff are aware of this policy.

Plaintiff contends that the inexcusable delay resulted in Plaintiff suffering permanent damage because he did not receive timely, appropriate diagnosis and treatment. Plaintiff alleges that Defendant Clark failed to adequately supervise and train staff. Plaintiff alleges Does 1 through 5 are officials at CDCR and SATF responsible for supervising and promulgating policies and procedures affecting medical care.

Plaintiff requests as relief compensatory and punitive damages, ...


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