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Robert Brendan Foster v. S. Zamora

April 7, 2011

ROBERT BRENDAN FOSTER,
PLAINTIFF,
v.
S. ZAMORA, ET AL.,
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 THIRTY-DAY DEADLINE STATE A CLAIM

(Doc. 1)

Screening Order

I. Screening Requirement and Standard

On January 29, 2010, Plaintiff Robert Brendan Foster, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)). 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 Complaint

A. Allegations

The events at issue in this action allegedly occurred at Kern Valley State Prison (KVSP) in Delano, California. Plaintiff names Associate Warden Nate Dill, Jr.; Health Care Manager S. Zamora; Doctors M. Spaeth, G. Gonzales, Calton, K. Nicholes, R. Smith, and C. K. Chen; Sergeant M. L. Sobbe; Warden Doe; and Does 1-5 as defendants. Plaintiff alleges that Defendants violated his rights under the Eighth Amendment of the United States Constitution and RLUIPA, and he seeks damages and equitable relief.

Plaintiff suffers from severe knee problems, radiculopathy in his arms, an anterior communicating aneurysm, posterior disc protrusion in the lumbar spine, and markedly impacted wisdom teeth. Plaintiff arrived at KVSP on February 6, 2006, and expected to be seen and evaluated by medical staff following his transfer. Plaintiff saw a registered nurse twice and was scheduled to be seen by a doctor on June 20, 2006, but the appointment was cancelled. During that time, Plaintiff's pain medication and medication for Valley Fever were discontinued.

Plaintiff filed an inmate appeal and except for the interview with Defendant Spaeth that occurred at the second level of review, he had limited contact with medical staff. Plaintiff alleges that he finally had knee surgery, but he did not receive any further evaluation for the constant, ongoing pain.

Plaintiff also alleges that he repeatedly requested to be allowed to use herbal and holistic remedies, in ...


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