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Kevin Roberson v. S. Zamora

January 12, 2011

KEVIN ROBERSON, PLAINTIFF,
v.
S. ZAMORA, ET AL., DEFENDANTS.



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

(ECF No. 21)

THIRD AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND FOURTH AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Kevin Roberson ("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. Plaintiff filed this action on February 11, 2008. (ECF No. 1.) Plaintiff has since filed three amended complaints: First Amended Complaint on February 15, 2008, Second Amended Complaint on March 24, 2008, and Third Amended Complaint on April 15, 2009. (ECF Nos. 4, 6, & 21.) No other parties have appeared in this action.

Plaintiff's Third Amended Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff has failed 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 COMPLAINT

Plaintiff alleges that his First Amendment rights were violated by Defendants' retaliatory conduct and that his Eighth Amendment right to adequate medical care was violated. Plaintiff names the following individuals as Defendants: S. Zamora, healthcare manager at Kern Valley State Prison ("KVSP"); Mohammed Ali, registered nurse (2) at KVSP; Sherry Lopez, primary healthcare provider at KVSP; and John Doe, warden or healthcare manager at California Correctional Institution ("CCI").

Plaintiff alleges the following: In 2003, Plaintiff filed a civil rights action against prison officials at High Desert State Prison. The case concluded with a jury verdict in favor of the defendants in 2005.

In May 2006, Plaintiff was transferred to KVSP. Before his transfer, a doctor at High Desert had determined that Plaintiff was a candidate for Hepatitis C treatment and was in the process of referring him for a liver biopsy at an outside facility. Upon learning that Plaintiff was to be transferred, the doctor held off on the biopsy referral, but assured Plaintiff that he would be taken care of at KVSP.

Plaintiff arrived at KVSP on May 31, 2006. At receiving and release, Plaintiff overheard prison officials referring to him as the "Litigator from High Desert." (ECF No. 21, p. 5; Pl.'s Compl. p. 5.) Subsequently, Plaintiff learned that several prison officials formerly from High Desert worked at KVSP and were familiar with Plaintiff's previous case.

Upon arrival at KVSP, Plaintiff informed the nurse in receiving that he had Hepatitis C and was in need of a liver biopsy and treatment. On June 21, 2006, Plaintiff had blood taken. One week later, he was notified that the test results were within normal limits and that no physician follow-up was necessary. Plaintiff filed a medical grievance in response.

The institution's response at the first and second levels was delayed and Plaintiff was given inaccurate and misleading information.

On November 27, 2007, Plaintiff was seen at the Hepatitis clinic. The doctor informed Plaintiff that because his earliest possible release date was December 19, 2008 and that the hepatitis treatment took sixteen months, Plaintiff was not eligible to receive the treatment.

In early 2008, Plaintiff's earliest possible release date was changed to April 2010. He met with Defendant Lopez and asked to receive treatment since he would be confined longer. Defendant Lopez told Plaintiff that she would look into it.

On May 16, 2008, Plaintiff was transferred to CCI. On November 18, 2008, a doctor at CCI placed a medical hold on Plaintiff pending a liver biopsy. Despite the medical hold, Plaintiff was transferred to Salinas Valley State Prison. His earliest possible release date was then ...


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