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Edward Hewitt v. State of California

May 25, 2011

EDWARD HEWITT,
PLAINTIFF,
v.
STATE OF CALIFORNIA, ET AL., DEFENDANTS.



ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM THIRD AMENDED COMPLAINT DUE WITHIN THIRTY DAYS (ECF No. 22)

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Edward Hewitt ("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. The Magistrate Judge screened Plaintiff's complaint and, on November 13, 2009, an order was issued dismissing the complaint with leave to amend. (ECF Nos. 1 & 11.) Plaintiff filed his First Amended Complaint on March 29, 2010, which was also dismissed with leave to amend. (ECF Nos. 16 & 19.) After an extension of time, Plaintiff filed a Second Amended Complaint on April 18, 2011. (ECF No. 22.) It is this Second Amended Complaint that is now before the Court for screening.

For the reasons set forth below, the Court finds that Plaintiff has again 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 violations of his Eighth Amendment right to adequate medical care. He names the following individuals as Defendants: Merced County Jail; Merced County Sheriff's Department; Merced County; Merced County Sheriff's Department medical staff; and Dr. Syria.

Plaintiff alleges the following: Plaintiff was incarcerated in the Merced County Jail. During that time, around May 7, 2007, he was injured and suffered constant and intense pain in his neck, back, legs, fingers, hips, left shoulder, hands, ankles, head, wrist, and right knee. Plaintiff requested medical attention through sick call request slips, but was ignored by Defendant Merced County Sheriff's Department. The pain was so extreme that Plaintiff could not sleep, stand, or sit-up. On May 10, 2007, Plaintiff contacted a public defender and court and informed them that he was not receiving medical attention. On May 13, 2007, Plaintiff was given Naproxen by a doctor. However, Plaintiff continued to be in pain, so he repeatedly notified Defendant Sheriff's Department that the medication was not working, but his sick call requests were ignored. Plaintiff requested diagnostic testing, to be seen by a doctor, and stronger medication, but his requests went unanswered and his sick call slips unacknowledged.

On May 18, 2007, Plaintiff's legs and shoulders were so sore that they did not work properly. Plaintiff submitted more sick call requests. These requests were refused and denied by Defendant Sheriff's Department. During the week of May 30, 2007, Plaintiff repeatedly requested treatment, Defendant Sheriff's Department ignored all requests. On June 8, 2007, Plaintiff requested medical assistance from Defendant Syria, but was refused. On June 28, 2007, Plaintiff fell because of the pain and suffered additional injuries. Plaintiff requested immediate medical attention after the fall.

In July 2007, Plaintiff was treated with mehorenol. However, he continued to be in pain. During August and September, Plaintiff was unable to walk or get out of bed due to the pain. During this time, Plaintiff continually requested treatment and diagnostic testing.

In September 2007, Plaintiff developed a rash on his body and blisters in his mouth. Plaintiff submitted numerous medical request slips, but all were denied and ignored. Between October 2007 and ...


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