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Mark Swagerty v. State of California

December 1, 2010

MARK SWAGERTY, PLAINTIFF,
v.
STATE OF CALIFORNIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff's original complaint was dismissed with leave to amend and plaintiff has filed an 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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

Plaintiff's original complaint stated that he was walking with his cane when he tripped over a faulty and damaged floor drain plate which caused him to fall and injure himself. The court dismissed the complaint with leave to amend as plaintiff's allegation did not rise to the level of an Eighth Amendment violation.

Plaintiff's amended complaint repeats the slip and fall allegation and then contends medical staff were deliberately indifferent to his serious medical needs as a result of the fall, while first housed at Deuel Vocational Institution (DVI) and then Avenal State Prison (ASP). Plaintiff alleges that Dr. Palagumni at DVI entered plaintiff into physical therapy which caused further pain and suffering, which Dr. Palagumni should have known would happen. Plaintiff also states that Dr. Palagumni discontinued plaintiff's medications for acute nerve damage which caused pain and suffering, however, plaintiff provides no more details.

The following details are not entirely clear from the amended complaint. On April 26, 2010, plaintiff was issued a 30 day cane chrono. On May 26, 2010, plaintiff states he was reissued and granted ADA status; the undersigned is not sure if this includes a cane. On May 28, 2010, plaintiff was seen by Physicians Assistant (PA) Street at DVI who allegedly took plaintiff's cane away and discontinued the ADA status granted two days prior.

On June 18, 2010, plaintiff was transferred to ASP. On June 30, 2010, plaintiff states his cane was taken away at ASP as a result of the actions of PA Street from DVI, discussed above.*fn1 However, this would mean that plaintiff was then reissued a cane at some point after PA Street allegedly took his cane on May 28, 2010. However, plaintiff's complaint does not describe how or when or by whom he was given the cane that was taken at ASP.

On July 1, 2010, staff at ASP submitted an order for plaintiff to have a cane. On July 2, 2010, plaintiff, who did not have a cane as he was waiting for the order to process, fell down and injured himself. Also at ASP, plaintiff was forced to work in the yard and injured himself on August 29, 2010. Plaintiff attributes all the injuries he suffered at ASP to Dr. Palagumni and PA Street and their actions while plaintiff was at DVI.

Plaintiff's amended complaint is dismissed and plaintiff will be granted 28 days to file a second amended complaint. Plaintiff's allegation regarding the slip and fall are dismissed for the same reasons discussed in the prior screening order. Plaintiff's allegations regarding the medical care he received fail to demonstrate an Eighth Amendment claim even at the early stage of screening. Plaintiff must describe in detail the actions of the defendants and how their conduct was deliberately indifferent to his serious medical needs. Nor has plaintiff stated any claim that would be a violation of the ADA. With respect to the allegations that plaintiff's cane was taken away which caused him to fall on July 1, 2010, plaintiff must provide a more coherent time line on when he had a cane and when he did not as discussed above.

In order to state a claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299, (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4 (1992).

A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th ...


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