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RICHARD ERNEST ANAYA v. HERRINGTON

November 29, 2010

RICHARD ERNEST ANAYA,
PLAINTIFF, ORDER DISMISSING CERTAIN CLAIMS
v.
HERRINGTON, ET AL., DEFENDANTS.



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

(DOC. 25)

Screening Order

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 this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act ("ADA"). Plaintiff initiated this action by filing his complaint on September 17, 2009. On October 29, 2009, the Court screened Plaintiff's complaint and dismissed with leave to amend. On November 16, 2009, Plaintiff filed his first amended complaint. On April 13, 2010, the Court screened Plaintiff's first amended complaint and dismissed with leave to amend. On April 29, 2010, Plaintiff filed his second 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 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 Second 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 S. Lopez, medical doctor Chen, associate warden Kelgore, and CC II J. White.

Plaintiff alleges the following. Plaintiff had received a finding by a previous doctor that he was permanently disabled due to his having a prolapsed rectum and Hepatitis C. Plaintiff also has lower extremity problems. Plaintiff had previously received a medical chrono to be single-celled.

Defendant S. Lopez was aware of Plaintiff's medical issues by denying him a medical chrono to be single-celled. Defendant S. Lopez was aware of the risk to Plaintiff from catching diseases, and from spreading Hepatitis C to other inmates. Defendant S. Lopez denied follow-up care for Plaintiff's lower back which causes Plaintiff acute pain when he suffers a prolapse. Plaintiff was also denied necessary reconstructive surgery for his knee. Plaintiff has lower extremity problems which requires a grab bar to use the toilet. Plaintiff is not in a cell with grab bars.

Defendant Chen was aware that Plaintiff suffered from Hepatitis C and that Plaintiff is susceptible to contracting other infectious diseases because of his rectal prolapse. Defendant Chen denied Plaintiff his single cell chrono and ADA accommodations. Plaintiff has a bulging disc and flattened vertebrae in his back, which causes him acute pain. Defendant Chen refused to refer Plaintiff to a back specialist for surgery and treatment.

Defendants J. White and R. Keldgore were aware that Plaintiff had a chrono for single cell status, and disregarded this by denying this chrono and placing Plaintiff in a cell with other inmates. Plaintiff has a transmittable disease, which leads other inmates to act aggressively when they find out. Defendants discriminated against Plaintiff by housing him in a cell without grab bars for the toilet.

Defendant Herrington denied Plaintiff's grievance. Defendant Herrington is responsible for Plaintiff as warden of the prison. Defendant discriminated against Plaintiff by housing him in a cell without grab bars, and denying him single cell status. ...


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