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Larry Russell v. Lancaster State Prison

July 21, 2011

LARRY RUSSELL, PLAINTIFF,
v.
LANCASTER STATE PRISON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

ORDER RE DISMISSAL OF FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

Larry Russell (hereinafter referred to as "Plaintiff"), appearing pro se, filed a Civil Rights Complaint Pursuant to 42 U.S.C. §1983 on May 16, 2011, pursuant to the Court's Order re Leave to File Action Without Prepayment of Full Filing Fee. Plaintiff alleges that his civil rights were violated by Defendants Lancaster State Prison and Pavel Petrik, M.D., in his official capacity. (Complaint at 2.)

On June 2, 2011, the Court issued an Order dismissing the Complaint with leave to amend.

On June 29, 2011, Plaintiff filed a First Amended Complaint ("FAC"). Plaintiff alleges that while incarcerated at Lancaster State Prison he had an infection in both armpits. Plaintiff alleges surgery was performed by Defendant Dr. Petrik to remove cysts from both armpits. (FAC at 3.) Plaintiff alleges after surgery the stitching in the left armpit was defective, causing damage to "gland canal." Id. Plaintiff alleges that Defendant Dr. Petrik "failed to comply on numerous follow-up procedures" and rushed through the surgery causing "default in stitching." Id. Plaintiff alleges two days before Plaintiff's release, Defendant Dr. Petrik tried to "apply (sic) about the matter." Defendant Dr. Petrik told Plaintiff the infection was gone. Id. at 4. Plaintiff alleges Defendant Dr. Petrik deliberately acted with an unprofessional state of mind. Plaintiff alleges that after two years his wound is still infected and has caused more pain and suffering than the actual surgery. Id. at 4.

In Claim One, Plaintiff alleges that Defendant Dr. Petrik failed to support surgical process and "promote[d] harmful/personal injuries." Id. at 5. Plaintiff alleges that "on call doctor claim default in stitching process" and Defendant Dr. Petrik offered "no proper treatment follow-up etc." Plaintiff alleges "negligence/ personal injury". Id. at 6.

Plaintiff seeks monetary damages. Id. at 7.

STANDARD OF REVIEW

Because Plaintiff is seeking to proceed in forma pauperis, the Court shall review such a complaint "as soon as practicable after docketing." Pursuant to 28 U.S.C. §1915(e)(2), the District Court is required to dismiss a complaint if the Court finds that the complaint

(1) is legally frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §1915(e)(2)(B) (re: all in forma pauperis complaints).

A complaint may also be dismissed for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). Neitzke v. Williams, 319, 327 n.6, 109 S.Ct. 1827 (1989) (unanimous decision)(patently insubstantial complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. When considering a dismissal, a Court must accept as true all allegations and material facts and must construe those facts in a light most favorable to the plaintiff. Resnick v. Hays, 213 F.3d 443, 447 (9th Cir. 2000). However, a "court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Nor is a Court "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 858 (2009).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. 1937, 1949, 172 L.Ed.2d 868 (2009)(citing Twombly, 550 U.S. at 556.) "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant acted unlawfully." (Id.) Although a complaint need not include "'detailed factual allegations,' ... [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of the cause of action will not do.'"

Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555. The Complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" (Id. at 1950 [quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted). "[A] well-pled complaint may proceed even if it appears that a recovery is very remote and unlikely." Twombly, 55 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).

In civil rights cases in which the Plaintiff appears pro se, the pleadings must be construed liberally, so as to afford the plaintiff the benefit of any doubt as to the potential validity of the claims asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). If, despite such liberal construction, the Court finds that the complaint should be dismissed for failure to state a claim, the Court has the discretion to dismiss the complaint with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). A pro se litigant should be given leave to amend, unless it is clear that the deficiencies of the complaint ...


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