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Joel P. Whitney v. J. Walker

October 13, 2011

JOEL P. WHITNEY,
PLAINTIFF,
v.
J. WALKER, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 12)

RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Background

Plaintiff Joel P. Whitney ("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 October 20, 2010. Plaintiff filed his amended complaint on April 21, 2011. Doc. 9. On May 9, 2011, the Court screened Plaintiff's amended complaint and found that it stated cognizable claims against Defendants Walker, Greenman, McElroy, Boparai, Malogi, and Campbell for deliberate indifference to a serious medical need, but failed to state a claim against Defendant Hartley. Doc. 10. Plaintiff was provided the opportunity to file a second amended complaint or notify the Court of his willingness to proceed only on the cognizable claims. On June 3, 2011, Plaintiff filed his second amended complaint. Doc. 12.

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 Second Amended Complaint

Plaintiff is currently incarcerated at Avenal State Prison ("ASP") in Avenal, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: J. Walker, chief of medical inmate appeals; James D. Hartley, warden of ASP; Ellen Greenman, chief medical officer of ASP; Donald B. McElroy, CEO of health care services at ASP; M. Boparai, chief physician and surgeon at ASP; S. Malogi, registered nurse and health care advocate at ASP;

G. Campbell, medical doctor at ASP; J. Nay, health care appeals coordinator at ASP; Robert Chapnick, chief medical executive and medical doctor at ASP; and L. D. Zamora, chief of the California Health Care Services for third level appeals in health care.

Plaintiff alleges the following. Dr. Gene Hori diagnosed Plaintiff with prostate cancer on May 26, 2009, of which Defendants were aware, and Defendant Hartley's office had been notified. Second Am. Compl. 6. Plaintiff received forty radiation treatments from August 5 to October 2 of 2009, of which Defendants were aware and Defendant Hartley's office had been notified. Id. On October 28, 2009, Plaintiff received a series of steroid injections upon completion of his radiation treatment. Upon information and belief,*fn1 Defendants were aware, and the Warden's office was notified. Id. at 7.

On November 20, 2007, CDCR issued a memorandum concerning "exclusion of inmate-patients susceptible to coccidiomycosis from highest risk (hyperendemic) area institutions." Id. ASP was one of the eight listed institutions as highest risk for coccidiomycosis (valley fever). Id. Defendants were aware of this memorandum. Id. The Mayo Clinic has a report which states that people being treated with steroids, with a weakened immune system, or people with cancer had an increased risk of complications from valley fever. Id.

On December 21, 2009, Plaintiff was admitted to Bakersfield Memorial Hospital for chest pain. Id. at 8. An x-ray at BMH revealed that Plaintiff had a lesion on his left lung. Id. Plaintiff was scheduled for surgery. Id. After surgery, a biopsy revealed that Plaintiff had a lesion that had been caused by a severe infection from valley fever. Id. All Defendants were made aware of this. Id.

On January 20, 2010, Plaintiff submitted a 602 inmate grievance to Medical, requesting a transfer to California Rehabilitation Center in Norco, California. Id. Plaintiff feared further medical complications, and wished to be closer to his family. Id. Plaintiff saw Defendant ...


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