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Kenneth Pearson v. James A. Yates

August 2, 2011

KENNETH PEARSON,
PLAINTIFF,
v.
JAMES A. YATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 1) RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Background

Plaintiff Kenneth Pearson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on January 13, 2011.

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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary Of Complaint

Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: warden James A. Yates; chief medical officer Felix Ibginosa; physician's assistant Randolph Wilson, registered nurse M. Griffith, health care appeals coordinators Nesbitt and Martinez, and John Doe 1, a medical doctor, and 2 through 5, primary care office assistants.

Plaintiff alleges the following. Plaintiff was previously diagnosed with cocci infection stemming from valley fever. Plaintiff suffered numerous complications from the cocci infection, including pneumonia and bronchitis, from November 2009 to March 2010.

Plaintiff started to suffer pain and swelling in his lower back on March 5, 2010. Plaintiff met with Defendant Wilson on March 15, 2010. Plaintiff complained of his back pain, which had become severe and disabling, as well as swelling. Defendant Wilson did not diagnose the pain or swelling. Defendant Wilson noted occasional back pain and promised to refer him to Correctional Treatment Center (CTC), and prescribe pain medication. None was done.

On March 26, 2010, Plaintiff submitted a Health Care Services Request Form CDC 7362, complaining of his severe pain. On March 29, 2010, Plaintiff submitted a second CDC 7362, complaining that the severe pain inhibited his ability to eat or walk. Plaintiff had been referred for x-rays, but had yet to be seen by anyone. Defendant Griffith received the first CDC 7362, and responded to the second CDC 7362 by scheduling Plaintiff for the MD line on March 30, 2010. Plaintiff was later seen by Defendants Wilson and Doe 1, who ordered an x-ray, prescribed capsaicin, a topical cream for arthritis, and methcarbamol, a sedative for musculoskeletal pain. Plaintiff received no pain relief.

Plaintiff filed a CDC 602 inmate appeal on April 5, 2010, and a third CDC 7362 on April 8, 2010. On April 12, 2010, Defendant Griffith saw Plaintiff, noted a 15 by 10 centimeter growth near Plaintiff's spinal column, and scheduled an urgent MD line appointment within 24 hours. The appointment did not occur. On April 18, 2010, Plaintiff filed a second CDC 602, complaining of never receiving his MD line appointment. On April 19, 2010, Plaintiff was seen by Defendant Griffith who noted a 4 by 5 inch swollen area on his back, and sharp pain. Plaintiff was scheduled for MD line appointment again, but did not receive it.

On April 21, 2010, Plaintiff filed a third CDC 602 inmate appeal and another CDC 7362 form. Plaintiff also wrote letters to the Prison Law Office and to Clark Kelso. On April 26, 2010, the Prison Law Office contacted a deputy attorney general. Plaintiff was seen on April 29, 2010, by Defendant Wilson, who examined Plaintiff, prescribed Tylenol 3 for the pain, and transferred Plaintiff to Mercy medical center. Plaintiff was treated for over two and a half months for disseminated cocci and related abscess.

Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages, full medical coverage ...


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