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Richard Cardenas v. M. Cate

May 10, 2011

RICHARD CARDENAS,
PLAINTIFF,
v.
M. CATE, ET AL., DEFENDANTS.



COMPLAINT DISMISSED WITH LEAVE TO AMEND (ECF No. 9) SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Richard Cardenas ("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 September 27, 2010 and consented to Magistrate Judge jurisdiction on October 18, 2010. (ECF Nos. 1 & 7.) Plaintiff's original complaint was stricken by the Court on February 18, 2011 for lacking Plaintiff's signature. (ECF No. 8.) On March 4, 2011, Plaintiff filed his First Amended Complaint. (ECF No. 9.) No other parties have appeared. This First 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 deliberate indifference to his serious medical need in violation of the Eighth Amendment. Plaintiff names the following individuals as Defendants: M. Cate, CDC Director; James D. Hartley, Warden; Dr. Greenman, CMO; and Dr. Campbell, ASP.

Plaintiff alleges the following: Prior to being incarcerated, Plaintiff was receiving treatment for Hepatitis C, cirrhosis of the liver, portal hypertension, and anemia. While Plaintiff was held at Santa Clara County Jail, the treating physician recommended that Plaintiff receive a C-scan every 90 days to monitor the lesion on his liver, which could be cancerous.

Plaintiff arrived at Avenal State Prison in November 2009. The recommended 90 day C-scans were not performed, so Plaintiff filed a 602 medical appeal on February 3, 2010. Plaintiff's liver was biopsied on April 7, 2010 which partially granted Plaintiff's 602 appeal. However, Plaintiff did not receive a C-scan.

Plaintiff seeks a transfer to a medical facility and a C-scan every 90 days.

IV. ANALYSIS

The Civil Rights Act under which this action was ...


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