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Mark Agnes v. Nurse Joseph

April 28, 2011

MARK AGNES, PLAINTIFF,
v.
NURSE JOSEPH, ET AL.,
DEFENDANTS.



ORDER REQUIRING PLAINTIFF TO EITHER FILE AN AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EIGHTH A M E N D M E N T C L A I M S A G A I N S T DEFENDANTS JOSEPH AND DIXON (ECF No. 1) / THIRTY DAY DEADLINE SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Mark Agnes ("Plaintiff") is a 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 May 10, 2010. (ECF No. 1.) No other parties have appeared.

Plaintiff's Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff has stated a cognizable claim upon which relief may be granted, but has failed to provide sufficient facts to state any claims as to his remaining allegations.

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 brings this action for inadequate medical care in violation of the Eighth and Fourteenth Amendments. Plaintiff names the following individuals as Defendants: Nurse Joseph, Nurse Dixon, Dr. Aye, and Wasco State Prison Medical Service.

Plaintiff alleges as follows: On March 19, 2010, Plaintiff submitted a request to be seen by a doctor for his seizure disorder, sycope episodes, and torn sciotic nerve in his left leg. In late March, Plaintiff was seen by Defendant Joseph who would not prescribe pain medication for Plaintiff's aliments. Plaintiff suffered two mild seizures, numerous sycope episodes, and was in pain from his torn nerve. Defendant Joseph denied Plaintiff's request to see a doctor. A few days later, Plaintiff saw Defendants Joseph and Dixon, who both refused Plaintiff's request to see a doctor. Defendant Dixon informed Plaintiff that his medical records were on their way. Dixon then told Plaintiff that his records were lost. Plaintiff asked that they start a new medical record, Dixon refused and told him that Defendant Aye would not see him until his medical records were located.

On April 4, 2010, Plaintiff waited for two hours at medical, only to be told that his medical records could not be located. Two days later, April 6, 2010, Plaintiff went back to medical and waited three hours only to, again, be told that his chart could not be located. Nineteen days passed before Plaintiff was seen by Defendant Aye on April 8, 2010.

Plaintiff seeks monetary damages.

IV. ANALYSIS

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. ยง 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 ...


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