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Eddie Ortega v. J. A. Yates

April 7, 2011

EDDIE ORTEGA,
PLAINTIFF,
v.
J. A. YATES, ET AL., (DOC. 8) DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM

THIRTY-DAY DEADLINE

Screening Order

I. Screening Requirement and Standard

Plaintiff Eddie Ortega, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 12, 2010. On July 21, 2010, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a).

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

II. Summary of Amended Complaint

A. Allegations

Plaintiff is currently incarcerated at Pleasant Valley State Prison (PVSP), where the events at issue in this action occurred. Plaintiff alleges that Chief Medical Officer Igbinosa, Doctor Duenas, and Nurses Kratts and Adonis violated his rights under the Eighth Amendment of the United States Constitution by acting with deliberate indifference to his medical needs.

On July 9, 2006, Plaintiff began experiencing flu-like symptoms and within several days he felt worse. Plaintiff experienced dizziness, high fevers, severe head pain, chest pain, night sweats, chills, coughing, dehydration, and stomach, muscle, and joint pain. Plaintiff submitted a request for health care services, but he did not receive a response.

Plaintiff submitted three more requests and he was then summoned to see a nurse. Plaintiff was weighed and his temperature was taken. Defendants Kratts and Adonis then told Plaintiff that there was nothing wrong with him, even though he told them he felt awful, his ankles and wrists were swollen, he had chest pain, and he was having trouble breathing. Defendants provided him with aspirin but no other treatment.

A few days later, Plaintiff's breathing problems and chest pain worsened, he was coughing more, he had headaches and diarrhea, and he would wake up drenched in sweat but chilled. Plaintiff put in another request for health care and the nurse referred him to a doctor for evaluation. ...


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