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STEVEN CHARKHIAN v. KEN CLARK

November 27, 2010

STEVEN CHARKHIAN,
PLAINTIFF,
v.
KEN CLARK, WARDEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FIRST AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER

(ECF No. 1)

I. PROCEDURAL HISTORY

Plaintiff Steven Charkhian ("Plaintiff") is a former state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 7, 2009 and consented to Magistrate Judge jurisdiction on August 6, 2009. He paid the filing fee and is not appearing in forma pauperis. Plaintiff's Complaint is now before this Court for screening.

For the reasons set forth below, the Court finds that Plaintiff's Complaint fails to state a claim upon which relief may be granted.

II. LEGAL STANDARD

A trial court may dismiss a claim sua sponte under Federal Rule of Civil Procedure 12(b)(6). Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987) (citing Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981)). Such a dismissal may be made without notice where the claimant cannot possibly win relief. Omar, 813 F.2d at 991. "A claim is legally frivolous when it lacks an arguable basis either in law or fact. A federal court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless." Halajian v. The City of Fresno, 3069897 WL 2010, *1 (E.D.Cal. Aug. 5, 2010) (citations omitted). See also Ingraham v. Lundrigan, 2942658 WL 2010, *1 (E.D.Cal. July 23, 2010).

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. Iqbal, 129 S.Ct. at 1949.

III. SUMMARY OF COMPLAINT

Plaintiff alleges a violation of his right to adequate medical care and his right to be free from cruel and unusual punishment, both under the Eighth Amendment. The events giving rise to his complaints occurred between August 2006 and April 2008 when Plaintiff was an inmate in the custody of the California Department of Correction and Rehabilitation ("CDCR"). Plaintiff names the following individuals as Defendants: Ken Clark, Warden of California Substance Abuse Treatment Facility/State Prison ("CSATF"); T. Bzoskie, Chief Medical Officer at CSATF; A. Enenmoh, Chief Medical Officer at CSATF; Zong, Medical Doctor at CSATF; Salmi, Medical Doctor at CSATF; and O. Beregovskaya, Medical Doctor at CSATF.

Plaintiff alleges as follows: In August 2006, while being held in Centenela State Prison, Plaintiff suffered severe stomach pain as a result of being poisoned. Plaintiff was then moved to Solano State Prison and seen by a specialist. On approximately September 10, 2006, he was transferred to Lancaster State Prison and then, on November 2, 2006, to CSATF. Plaintiff was suffering severe pain in his left side, chronic constipation, and symptoms of a hernia and ulcer.

Upon arrival at CSATF, Plaintiff explained his conditions to the nurse in receiving. He was then sent to housing. On November 6, 2006, Plaintiff submitted a medical care request for help with his pain. No action was taken. On November 20, 2006, Plaintiff was in such pain that he could not leave his cell. A week later, he received a response from Defendant Bzoskie stating that he needed to submit another inmate grievance. Plaintiff re-submitted his grievance for review by the Warden. The Warden denied Plaintiff's grievance.

Plaintiff requested, and was denied, pain medication on December 8, 2006. A nurse told him to submit another medical request form in order to be seen by a doctor. On December 14, 2006, Plaintiff saw Defendant Dr. Salmi, who diagnosed him with heartburn and constipation and ordered lab work. At some point later, Plaintiff again asked to be seen by a doctor and requested a lower tier/lower bunk bed assignment as well as a stomach/back brace. On February 2, 2007, Plaintiff again saw Dr. Salmi who ordered Plaintiff to take fiber tablets for his conditions. Plaintiff informed the doctor that the tablets did not work.

On March 12, 2007, Plaintiff asked again to be seen by a doctor. This request was denied. Plaintiff was seen by Dr. Salmi on May 3, 2007 to discuss the results of blood work (which revealed high cholesterol). On July 15, 2007, Plaintiff was in severe pain, fell to the ground, was carried to his bed, and received Tylenol for his pain.

During the months of July, August, and September 2007, Plaintiff initiated several pieces of correspondence and submitted multiple Inmate Request for Interview forms to the Warden and Chief Medical Officer. No response was received.

On March 18, 2008, Plaintiff was in severe pain and saw Defendant Dr. Beregovskaya, who scheduled him for surgical hernia repair. Surgery was done March 24, 2008. Plaintiff was released from the hospital and returned to CSATF March 28, 2008. He was assigned to a middle bunk bed in an upper tier; both assignments caused him severe pain. He requested pain medication and different housing and bed accommodations.

On April 9, 2008, the staples from his surgery were removed.

On April 17, 2008, in response to one of the multiple complaints filed by Plaintiff, Dr. Beregovskaya interviewed him and ordered pain ...


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