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Curtis L. Kimbrough v. Dr. Erica Weinstein

January 6, 2011

CURTIS L. KIMBROUGH,
PLAINTIFF,
v.
DR. ERICA WEINSTEIN, ET AL., (DOC. 23) DEFENDANTS.



The opinion of the court was delivered by: Sandra M. SnyderUNITED States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION,WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983

THIRTY-DAY OBJECTION PERIOD

Findings and Recommendations Recommending Dismissal of Action

I. Procedural History

Plaintiff Curtis L. Kimbrough, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 22, 2008. On September 10, 2009, the Court screened Plaintiff's complaint and dismissed it with leave to amend for failure to state any claims. Plaintiff filed an amended complaint on October 30, 2009.

II. Screening Requirement

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, 127 S.Ct. 1955, 1964-65 (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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal, 129 S.Ct. at 1950, and while factual allegations are accepted as true, legal conclusions are not, id. at 1949.

III. Plaintiff's Eighth Amendment Medical Care Claim

A. Allegations

Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation and at the time of the events at issue in this action, he was incarcerated at Avenal State Prison. Plaintiff alleges that he was denied appropriate follow-up medical care after having shoulder surgery, in violation of his rights under the Eighth Amendment of the United States Constitution. Plaintiff names Mercy Hospital surgeon Young Paik, M.D.; Avenal State Prison Chief Medical Officers Erica Weinstein, M.D., and Nanveet Adaya, M.D.; and Avenal State Prison physical therapist Steve Chabak, M.D., as defendants. Plaintiff seeks damages, declaratory relief, and an injunction.

On June 20, 2007, Plaintiff had arthroplasty on his left shoulder at Mercy Hospital in Bakersfield and he remained hospitalized until June 25, 2007, at which time he was sent back to Avenal State Prison. Defendant Paik, who performed the surgery, issued an order recommending that Plaintiff be provided with physical and occupational therapy on an urgent basis. Physical therapy had been ordered while Plaintiff was in the hospital, but he did not receive any.

On June 27, 2007, Plaintiff requested to see to a doctor and was seen by Dr. Castillo, a primary care physician. Plaintiff asked about receipt of physical and occupational therapy and was told by Dr. Castillo that the Chief Medical Officer had not renewed a contract with a physical therapy provider. Dr. Castillo issued a request for Plaintiff to be sent to an outside facility for physical and occupational therapy on an urgent basis.

Plaintiff was finally seen for physical therapy on September 6, 2007, at which time he was told by Defendant Chabak that he would receive therapy two to ...


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