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Gilberto Garcia v. Bondoc

June 8, 2011

GILBERTO GARCIA,
PLAINTIFF,
v.
BONDOC, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

JULY 11, 2011

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)PLAINTIFF'S AMENDED COMPLAINT DUE SCREENING ORDER

I. PROCEDURAL HISTORY

On September 22, 2009, Plaintiff Gilberto Garcia, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff has consented to a Magistrate Judge handling all aspects of this case. (ECF No. 6). Plaintiff's Complaint is before the Court for screening.

II. SCREENING REQUIREMENT

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 hasraised claims that are legally "frivolous, malicious," or 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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

III. PLAINTIFF'S CLAIMS

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

The Complaint identifies as Defendants Bondoc and Wong, nurse practitioners, Corcoran State Prison; McGuinness and Swingle, Chief Medical Officers, California Department of Corrections and Rehabilitation; Wrigley, nurse practitioner, High Desert State Prison; and John Does one through ten. Plaintiff alleges the following:

Upon arriving at Corcoran in early August 2007,Plaintiff informed medical staff that he was experiencing abdominal and testicular pain. (Compl. at 6). On January 25, 2008, Plaintiff was seen by Defendant Bondoc who diagnosed a hernia that could not be treated until it ruptured. No standard hernia exam was conducted and Plaintiff's testicles were not examined because Defendant Bondoc concluded that a separate visit would be necessary. (Compl. at 7, 8).

Plaintiff submitted an administrative appeal challenging this treatment. Defendant Wong reviewed the appeal and, during a follow-up visit with Plaintiff on April 9, 2008, prescribed pain medication and x-rays. Defendant Wong diagnosed a benign lytic lesion in the right femoral neck. (Compl. at 28). Plaintiff objected to the medicine prescribed on the grounds it had already been tried unsuccessfully. (Compl. at 8). At a follow up visit at which Plaintiff complained of increasing pain, Defendant Wong prescribed Naproxen, Mapap, and a cane. (Compl. at 9). Defendant McGuinness reviewed Plaintiff's second appeal and found that Plaintiff's recourse was to request follow-up treatment in search of effective pain relief. (Id.) At some point, Plaintiff was transferred to High Desert State Prison. By July 28, 2009, he had made numerous complaints of chronic pain to High Desert medical staff. (Compl. at 12). None of the High Desert staff members are identified; the Court assumes some may be included among the ten John Doe defendants. On September 19, 2008, Defendant Wrigley attended to Plaintiff and prescribed new medication and further exams. (Compl. at 14). The medication did not eliminate the pain. On two consecutive follow up visits Defendant Wrigley prescribed two different medications and ordered an MRI and x-rays. (Compl. at 16). Plaintiff filed multiple formal and informal appeals objecting to the course of treatment selected by his medical providers.

Plaintiff alleges that the medical treatment described above violated his Eighth Amendment right to be free from cruel and unusual punishment. The Court will ...


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