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Demetrius Mccray v. T. Wolfe

December 6, 2010

DEMETRIUS MCCRAY,
PLAINTIFF,
v.
T. WOLFE, ET AL., DEFENDANTS.



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

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 11)

SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

SECOND SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Demetrius McCray ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at Mule Creek State Prison in Ione, California. He is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to Magistrate Judge jurisdiction on March 6, 2008. (ECF No. 5.) No other parties have appeared in this action.

Plaintiff's original February 21, 2008 complaint was dismissed on June 22, 2009 for failure to state a cognizable claim. (ECF No. 10.) He was granted leave to amend and filed his First Amended Complaint on July 7, 2009. (ECF No. 11.) Plaintiff's Amended Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff's First Amended Complaint fails to state a claim upon which relief may be granted.

II. SCREENING REQUIREMENTS

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 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 FIRST AMENDED COMPLAINT

Plaintiff brings this action for violation of his rights under the Eighth Amendment. Plaintiff names as Defendants T. Wolfe, officer at Avenal State Prison; Ms. Summer, officer at Avenal State Prison; Correa, Officer at Avenal State Prison; King, Officer; and Sargent S. Stockton, Officer at Avenal State Prison.

Plaintiff states that he was assigned to an upper bunk bed. On a date unspecified by Plaintiff, he complained to Defendant Stockton that he was not able to get into the upper bunk because of a leg impairment which left him with metal plates in his leg, dependent upon a cane, and unable to run, jump, stand or walk for a long time, or climb. Defendant Stockton advised Plaintiff that he could do nothing about the bunk bed assignment. Plaintiff filled out a medical request form; no immediate action was taken on the request.

Later that same day, Defendants Wolfe and Summer were on the second shift. Plaintiff similarly informed them of his condition and inability to climb into the upper bunk. Each told Plaintiff that he/she could do nothing about the bed assignment. Plaintiff took his medications and laid on the floor. Defendants Correa and King made Plaintiff get up and try to climb into the upper bunk. At some point, while trying to climb up into or down out of the upper bunk, Plaintiff's leg gave out. He fell and was taken to the ...


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