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Michael Whitfield v. Ellen Greenman

September 29, 2011

MICHAEL WHITFIELD,
PLAINTIFF,
v.
ELLEN GREENMAN, M.D., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 THIRTY-DAY DEADLINE (Doc. 1)

Screening Order

I. Screening Requirement and Standard

Plaintiff Michael Whitfield, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 8, 2011. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

II. Plaintiff's Eighth Amendment Medical Care Claim

A. Allegations

Plaintiff brings this action against Chief Medical Officer Ellen Greenman, Health Care Services Chief Executive Officer Donald B. McElroy, and Chief Physician and Surgeon M. Boparaio for acting with deliberate indifference to his medical needs, in violation of the Eighth Amendment.

Following his transfer to Avenal State Prison, Plaintiff was screened in Receiving and Release on November 2, 2009, by Ms. Salcedo, a registered nurse. Plaintiff informed Ms. Salcedo that he was in pain due to complications from hernia surgery. Ms. Salcedo documented the information and completed a form requesting that Plaintiff be seen by a doctor within fourteen days.

Plaintiff was not seen by a doctor and on November 14, 2009, he requested medical attention via the submission of a health care services request form. Plaintiff submitted subsequent requests on December 28, 2009, January 30, 2010, and February 2, 2010. Plaintiff was finally seen by a doctor on February 17, 2010, at which time he complained about severe pain and difficulty walking and climbing, and he requested a lower bed chrono.

Plaintiff alleges that Defendants Greenman, McElroy, and Boparai are liable for the violation of his rights arising from the failure to provide him with any medical care between November 17, 2009 and February 16, 2010, because they knew or should ...


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