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Edward Hewitt v. State A Claim State of California

December 7, 2010

EDWARD HEWITT,
PLAINTIFF,
v.
STATE A CLAIM STATE OF CALIFORNIA, ET AL.,
DEFENDANTS.



ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO THIRTY-DAY DEADLINE

(Doc. 16)

I. Screening Requirement

Plaintiff Edward Hewitt ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Magistrate Judge screened Plaintiff's complaint and, on November 13, 2009, an order was issued dismissing the complaint with leave to amend. (Doc. 11.) Currently pending before the Court is the first amended complaint, filed March 29, 2010. (Doc. 16.)

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard 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. 554, 555 (2007)).

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[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.'" Iqbal, 129 S. Ct. at 1949 (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. Iqbal, 129 S. Ct. at 1949. "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. Complaint Allegations

Plaintiff is out of custody and residing in Turlock, California. The incidents alleged in the complaint occurred while he was detained at the Merced County Jail. On May 7, 2007, Plaintiff "had extreme and excruciating pain in the area of his neck[,] back[,] legs, fingers, hips, shoulder (left), both hands, ankles, head (in the form of headaches), wrist, [and] right knee" that was so severe he was unable to "sleep, stand, or sit up." (Doc. 16, p. 4.) Although Plaintiff submitted sick call requests he was not treated. On May 10, 2007, Plaintiff requested treatment through Judge McCabe, who was presiding at his court hearing. On May 13, 2007, Plaintiff was given Naproxen for the pain. He continued to have excruciating pain and notified the Merced County Sheriff's Department that the medication was not working. On May 18, Plaintiff's legs and shoulders were sore and "not working properly." (Id.)

Plaintiff continually submitted requests for medical treatment but never received any "medical help." (Id. at 4-5.) On June 8, 2007, Plaintiff requested medical attention from Defendant Syria at the Merced County Sheriff's Department. He did not receive treatment. On or about June 28, 2007, Plaintiff was in so much pain he fell and hit his head. (Id. at 5.) He immediately requested medical treatment. In July 2007, Plaintiff was prescribed Mehorenol for the pain, but he continued to have difficulty sleeping due to the extreme pain. Plaintiff continued to have pain and request an x-ray, MRI, physical therapy, or other medical or diagnostic treatment without result. (Id.)

At the end of September 2007, Plaintiff developed a severe rash to both legs and blisters in his mouth, which spread to his body. He submitted medical request slips, but was not seen or treated. (Id. at 6.) Plaintiff alleges that the Merced County Sheriff's Department failed to diagnose and treat a degenerative joint disease, causing further pain and deterioration of his condition. (Id. at 6-7.)

Plaintiff brings this action naming Defendants Merced County Jail, Merced County Sheriff's Department, Merced County Jail medical staff, and Dr. Syria. (Id., § III.) He is seeking $4,000,000 in general, specific, and punitive damages. (Id., § V.) For the reasons set forth, the Court finds that Plaintiff's first amended complaint fails to state a claim upon which relief may be granted. Plaintiff will be given one final opportunity to file a second amended complaint in compliance with the standards discussed below.

III. Discussion

A. Medical ...


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