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Steven Charles Acero v. Georgia Thomatos

October 3, 2011

STEVEN CHARLES ACERO,
PLAINTIFF,
v.
GEORGIA THOMATOS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

OR DER DISMIS S IN G P LAINTIFF'S COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 1)

ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER, REQUEST FOR ENTRY OF DEFAULT, AND MOTION FOR DEFAULT JUDGMENT (ECF Nos. 12, 13, 14) THIRTY DAY DEADLINE

I. Screening Requirement

Plaintiff Steven Charles Acero ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The complaint in this action was filed on July 22, 2010. (ECF No. 1.) On March 18, 2011, Plaintiff filed a motion for a temporary restraining order. (ECF No. 12.) Plaintiff filed a request for entry of default on April 27, 2011, and a motion for default judgment on June 16, 2011. (ECF Nos. 13, 14.)

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

Under section 1983, Plaintiff must demonstrate that each defendant personally 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). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a courtneed not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

II. Complaint Allegations

Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at the Sierra Conservation Center ("SCC"). Plaintiff brings this action against Defendants Georgia Thomatos, Edwin Banji, Jack St. Clair, Robert Folsom, and Curtis Allen alleging deliberate indifference to a serious medical need. (Compl. 2-3, ECF No. 1.)*fn1 Plaintiff was diagnosed with spinal injuries and suffers from severe neck and back pain. (Id. at 3, 8.)

Plaintiff was seen by Defendant Thomatos and requested a referral to a neurologist and an MRI. Defendant Thomatos told Plaintiff that his request for a referral was not going to happen. (Id. at 8.) Plaintiff requested pain medication and Defendant Thomatos refused, instead prescribing a "psyc./sezuire" medication which was not effective in treating his pain. (Id. at 8.) Plaintiff appealed the decision and received a response from Defendant St. Clair stating, "At your current weight you are a poor candidate for surgery." Defendant Banji ordered physical therapy instead of a neurological consult. (Id. at 9.)

Plaintiff attended physical therapy, and Defendant Folsom manipulated Plaintiff's spine. The manipulation of Plaintiff's spine hurt so he told Defendant Folsom to stop and did not allow him to manipulate him again. Plaintiff is being treated with a TENS unit and was placed on Indomethacin which is not effective as he is still experiencing extreme pain. Since completing physical therapy, which Defendant Allen, approved Plaintiff's condition is worse. (Id.)

Plaintiff fell as he was coming down from an upper bunk and alleges that Defendant Thomatos was negligent because she should have initiated a lower bunk chrono. Afer Plaintiff was injured during the fall, Defendant Thomatos told Plaintiff that a lower bunk chrono for sixty days would be sufficient for him to recover from the injuries he sustained. (Id. at 10.) Plaintiff was offered to change his medication to one to which Plaintiff alleges he is allergic. (Id. at 11.)

Plaintiff is seeking compensatory damages and injunctive relief. For the reasons set forth below Plaintiff fails to state a cognizable claim for a violation of his constitutional rights.

III. Deliberate Indifference

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show "deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "a 'serious medical need' by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and ...


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