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Ricardo Yearwood v. M.D. Biter

August 9, 2011

RICARDO YEARWOOD,
PLAINTIFF,
v.
M.D. BITER, ET AL.,
DEFENDANTS.



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

ORDER DISREGARDING MOTION (DOC. 2)

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 Ricardo Yearwood ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on January 25, 2011. Doc. 1.*fn1

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 is currently incarcerated at Kern Valley State Prison ("KVSP"), and was previously incarcerated at Pleasant Valley State Prison ("PVSP") where the alleged events at issue in this action occurred. Plaintiff names as Defendants: James A. Yates, warden of PVSP; Chief medical Officer Kushner, of PVSP; M. D. Biter, acting warden of KVSP; J. Todd, health care appeals coordinator of PVSP; G. Moonga, registered nurse at KVSP; S. Zamora, health care manager at KVSP; and Riesha Arnet, supervising registered nurse at KVSP.

Plaintiff alleges the following. On August 28, 2005, Plaintiff was involved in a physical altercation with another inmate which resulted in Plaintiff suffering a broken right clavicle. Plaintiff was housed at PVSP at the time of the incident. Plaintiff was sent to the prison hospital, and received x-rays and treatment. Plaintiff was advised that he would be sent to an outside hospital for additional treatment.

On January 11, 2006, Plaintiff was in a tele-med conference with doctors at U.C. Davis, who informed Plaintiff that the bone should be reset, Plaintiff's arm and shoulder placed in a case, and surgery was needed. Plaintiff endured pain for five months, receiving only some pain medication and being seen by a registered nurse twice. Plaintiff finally received surgery on March 21, 2007.

Plaintiff was scheduled for a follow-up interview with a doctor one month after the surgery, but prison officials at KVSP misplaced his medical documents. Plaintiff removed his own surgical stitches with the help of his cell mate. Plaintiff was finally seen by an orthopedic surgeon for follow-up four to six months after his surgery.

Plaintiff was also receiving physical therapy treatment, which was cancelled after KVSP no longer had a clinical therapist. Plaintiff was not sent to an outside hospital for physical therapy. Plaintiff ...


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