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Frank A. Rust v. Silvia H. Garcia

July 29, 2011

FRANK A. RUST, PLAINTIFF,
v.
SILVIA H. GARCIA, ET AL., DEFENDANTS.



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

ORDER RE DISMISSAL WITH LEAVE TO AMEND

Pro se Plaintiff Frank A. Rust (hereinafter referred to as "Plaintiff") filed a civil rights Complaint pursuant to 42 U.S.C. §1983 pursuant to the Court's Order re Leave to File Action Without Prepayment of Full Filing Fees on May 12, 2010 ("Complaint"). Following issuance of an "Order re Dismissal with Leave to Amend," Plaintiff filed a First Amended Complaint ("FAC").

BACKGROUND

A. Complaint.

Plaintiff alleges that Defendants have wrongfully denied him proper medical care. Specifically, Plaintiff alleges that Defendants have denied him properly prescribed orthopedic boots (by an outside orthopedist) based on non-medical personnel's disagreement with the outside orthopedist's recommendation. (Complaint ¶ 19.) Plaintiff alleges that this denial of his orthopedic boots, without consulting the outside orthopedist, constitutes deliberate indifference to his medical care. Plaintiff alleges he has serious health problems, including high blood pressure, spinal problems (Plaintiff alleges he underwent major spine surgery), and a stroke, which has affected his movement and eyesight. (Complaint at ¶¶ 20-22.) Plaintiff alleges prolonged delays in treatment have caused him to suffer unnecessary psychological pain. Id. at 23. Plaintiff alleges that Defendants have no legitimate penological interest in prohibiting Plaintiff's prescription for orthopedic footwear. (Complaint ¶ 26A -I.) Plaintiff alleges that Defendants retaliatory intent is proved by Defendant Captain Smith's falsified statements. (Id. at 26 ¶ I.)

Plaintiff alleges the following causes of action: (1) Eighth Amendment - cruel and unusual punishment (deny, delay or interfere with medical treatment); (2) Eighth Amendment - right to adequate medical care; (3) Eighth Amendment - right to proper medical care; (4) Eighth Amendment - cruel and unusual punishment for failure to duty to use due care; (5) Fourteenth Amendment - equal protection violation; (6) Fourteenth Amendment - discrimination; (7) Fourteenth Amendment -Equal Protection Clause violation; (8) cruel and unusual punishment -deliberate indifference to serious medical needs; (9) cruel and unusual punishment - custody administration's objection to prescribed treatment; (10) cruel and unusual punishment - Defendants maliciously deprived Plaintiff of alternative choice of treatment; and (11) cruel and unusual punishment - Defendants denied Plaintiff substantial compliance with the Americans with Disabilities Act. (Plaintiff's Complaint C4-C10; ¶¶ 27-37.)

Plaintiff names the following Defendants: Matthew Cate, Director of California Department of Corrections and Rehabilitation; Silvia H. Garcia, Warden at Ironwood State Prison; Violet Wells, Associate Warden at Ironwood State Prison; David Long, Chief Deputy Warden at Ironwood State Prison; M. Payto, Associate Warden, Health Care Operations at Ironwood State Prison; R. Johnson, Correction Captain, Health Care Access at Ironwood State Prison; S. Smith, Correctional Captain; G. W. Harris, Correctional Lieutenant Medical Appeals Reviewer; L. Blair, Health Care Appeals Coordinator; C. Hammond, Staff Service Manager I Appeals Examiner; N. Grannis. Chief Inmate Appeals; S. Danner, Appeals Coordinator; D. Hall, Correctional Sergeant; and Does 1-50. (Complaint at B2-B5.)

On June 18, 2010, Plaintiff filed a document entitled "Supplemental Material on Denial of Administrative 602 Grievance Procedures. A Continuing Problem at Ironwood State Prison."

B. First Amended Complaint.

Plaintiff alleges that Defendants use a sole vendor for orthotic devices which he alleges creates a "legal conflict intrest [sic] of all parties." (FAC ¶ 8(c).) Plaintiff alleges that after a two-year process he is still without adequate prescribed orthopedic shoes. (Id., ¶ 8(d).) Plaintiff alleges that on May 11, 2010, he visited the outside vendor, orthotics specialist Dave Solist and was examined. Plaintiff complains that he was "met with a very poor attitude and unkind remarks/comments." (Id., ¶ 9(a).) Plaintiff alleges that on June 25, 2010, he was given orthotic shoes. (Id., ¶ 9(c).) He asserts the shoes did not work properly and that on the same day he tried to return the shoes, but was denied. (Id., ¶¶ 9(d), (e).) Plaintiff complains that the construction of the orthotic boots he received is inadequate and reflects "a clear cut case of improper, dishonest and deceptive business practices ..." (Id., ¶ 9(e).)

Plaintiff alleges that J. M. Lee, the Chief Medical Officer ("CMO"), told him on July 21, 2010 that he could return the orthotic boots. Plaintiff alleges that the outside vendor did not accept the return. (Id., ¶ 10.) Plaintiff asserts that he requested that a different outside vendor orthotist be assigned, but he has not yet received a response to this. (Id., ¶ 12.)

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 (9thCir. 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 the 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]' - ...


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