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Graham v. Harley

November 10, 2010

BEVIN GRAHAM, SR., PLAINTIFF,
v.
JAMES HARLEY, ET AL., DEFENDANTS.



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

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN 30 DAYS

(Doc. 1)

Plaintiff Bevin Graham, Sr. ("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 Avenal State Prison ("ASP") in Avenal, California. However, some of the events described in Plaintiff's complaint took place while he was incarcerated at North Kern State Prison ("NKSP") in Delano, California. Plaintiff names James Harley (warden), Ellen Greenman (chief medical officer), Guino (correctional officer) and Jackson (correctional officer) as defendants ("Defendants"). For the reasons set forth below, the Court finds that Plaintiff's complaint fails to state any cognizable claims. Plaintiff's complaint will be dismissed, with leave to file an amended complaint within thirty days.

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).

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

Plaintiff claims that he was injured while being transported to a hospital outside the prison. On February 20, 2009, Plaintiff was transported from NKSP to an off-site optometry clinic. After the appointment, Plaintiff fell down while attempting to exit the transport van. Defendant Guino tried to break Plaintiff's fall, but Plaintiff was knocked back onto the side of the van. Guino attempted to lift Plaintiff off the ground but Plaintiff could not move because he was shackled. Guino removed the shackles and assisted Plaintiff to his feet. Guino hurt his hand trying to break Plaintiff's fall and complained that he should have let Plaintiff fall without trying to help. A few moments later, Guino asked Plaintiff if he was hurt, and Plaintiff reported that his back and left shoulder were hurting. Guino then climbed into the van and began complaining because Plaintiff left his empty lunch bag in the van. Guino told Plaintiff to take his trash home. Plaintiff contends that Guino failed to follow proper procedure by failing to have Plaintiff examined by medical staff immediately.

When Plaintiff returned to his housing unit, he felt a sharp pain in his back after he attempted to sit on his bunk. Plaintiff filled out a sick call slip and asked another prisoner to deliver it to the clinic. Thirty minutes later, Plaintiff was summoned to the clinic. Plaintiff was "triaged" by the nurse and sent back to his housing unit. Thirty minutes later, Plaintiff was called back and was offered Ibuprofen. Plaintiff rejected the pills because it elevated his blood pressure and hurt his stomach. Plaintiff was given Aleve instead. Plaintiff was told that he would see a doctor three days later on Monday.

Plaintiff was not seen until Tuesday morning and received x-rays of his back. Four days later, Plaintiff submitted a form requesting a firm mattress because of his severe back pain. On March 25, 2009, Plaintiff's request was partially granted and Plaintiff was given a "double mattress chrono" from Dr. C. Ukiomogby. However, Plaintiff was transferred to ASP ten days later.

Plaintiff presented his double mattress chrono to ASP staff, but the staff refused to honor the chrono. Plaintiff was instead told to fill out a sick call slip. Plaintiff filled out several slips but did not receive a response until around July 7th or 8th. Plaintiff was seen by a registered nurse, but did not see a doctor. On July 11, 2009, Plaintiff was scheduled to see a doctor, but when he arrived at the clinic, a correctional officer told him to wait in his housing unit until he was called. Plaintiff complains that another prisoner was ducated the same day and seen for treatment, while Plaintiff's appointment was canceled. Plaintiff filed a "request for reasonable accomendation[sic]" but contends that he did not receive a response and Dr. E. Nareddy claimed to have interviewed Plaintiff about the matter but the purported interview never occurred.

On July 29, 2009, Plaintiff was seen by a registered nurse. However, Plaintiff's medical file was not available and the nurse took some notes and told Plaintiff he would be seen by a doctor in the next few days. On August 1, 2009, Plaintiff received a ducat to see a doctor on August 3, 2009. The doctor told the nurse to give Plaintiff "a pass to have his blood presure[sic] checked every day for one (1) week" by the licensed vocational nurses in the clinic. (Compl. 9, ECF No. 1.) However, Plaintiff's blood pressure was not checked on two of those days because the nurses were too busy.

On August 6, 2009, Plaintiff's chest was x-rayed. On August 12, 2009, Doctor T.F. Amato ordered physical therapy for Plaintiff's left shoulder. Plaintiff received another x-ray and was given a bottle of Acetaminophen. On August 20, 2009, Plaintiff was seen by a nurse who told Plaintiff that he would be taken to an outside clinic for x-rays and would also be taken to see a physical therapist. On September 16, 2009, Plaintiff was taken to Pleasant Valley State Prison for x-rays. On September 18, 2009, Plaintiff was seen by a physical therapist and was told that his shoulder was injured or fractured.

On October 10, 2009, Plaintiff saw the physical therapist and was given instructions regarding performing various exercises on his own. On November 15, 2009, Plaintiff was seen by clinic staff and given Ibuprofen and Acetaminophen. On ...


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