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Timothy Howard v. J. Wang

September 16, 2011

TIMOTHY HOWARD,
PLAINTIFF,
v.
J. WANG, ET AL., DEFENDANTS.



AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND (ECF No. 16) SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS/ SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Timothy Howard ("Plaintiff") is a state prisoner and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September 28, 2010. (ECF No. 1.) Plaintiff then filed an Amended Complaint on January 13, 2011. (ECF No. 16.) No other parties have appeared.

Plaintiff's Amended Complaint is now before this Court for screening.*fn1 For the reasons set forth below, the Court finds that it fails to state a claim upon which relief may be granted.

II. SCREENING REQUIREMENTS

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 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

III. SUMMARY OF COMPLAINT

Plaintiff brings this action for violation of his Eighth Amendment right to adequate medical care and his right to be free from cruel and unusual punishment. Plaintiff names the following individuals as Defendants: J. Wang, medical doctor and Edgar Clark, medical doctor. Both Defendants were employed at Corcoran State Prison at the time of the incidents.

Plaintiff alleges as follows: Plaintiff was previously diagnosed with mild quadriparesis, greater on the right side of his body than the left. On August 21, 2009, Plaintiff had to be physically extracted from his cell. During the extraction, his left foot was apparently injured. Defendant Wang informed Plaintiff that his left foot was sprained with a possible metatarsal fracture. Wang then cleared him to return to his cell, stated that Plaintiff should continue with the same medication, and that he should stay off of his left foot. Defendant Clark then came in the room and informed Plaintiff that an Investigative Services Unit Lieutenant wanted Plaintiff removed from the disability program, and all medical appliances and pain medication discontinued.

Plaintiff was then transferred to Corcoran Substance Abuse Treatment Facility (CSATF) without pain or seizure medication, or chronos for any medical appliances. Plaintiff was forced to stand on his left foot causing severe pain and crawl to the door for food and medication.

On August 25, 2009, Plaintiff was taken to the prison hospital where it was discovered that medication was not forwarded at the time of the transfer, nor were any medical appliances. Both Defendants Wang and Clark had signed off on the removal of medical appliances from Plaintiff's chronos and failed to forward his pain and seizure medication. That same day, both pain and seizure medication were ordered for Plaintiff. Plaintiff was also informed that he would be given a wheel chair and crutches.

Plaintiff seeks injunctive and declaratory relief, compensatory, punitive, and nominal damages, attorney fees, and costs.

IV. ANALYSIS

The Civil Rights Act under which this action was ...


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