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Richard Diaz v. Matthew Cates

November 15, 2011

RICHARD DIAZ,
PLAINTIFF,
v.
MATTHEW CATES, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO FILE FIRST AMENDED COMPLAINT (Doc. 1) FIRST AMENDED COMPLAINT DUE IN THIRTY DAYS

Screening Order

I. Screening Requirement

Plaintiff Richard Diaz ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 9, 2011.

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, 127 S.Ct. 1955, 1964-65 (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. Id. at 1949.

II. Summary of Plaintiff's Complaint

Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). He is housed at Avenal State Prison ("ASP") in Avenal, California, where the events giving rise to the claims at issue in this action allegedly occurred. Plaintiff names Matthew Cates, Secretary of CDCR; Former Warden Kathy Mendoza-Powers; Warden James D. Hartley; Former Associate Wardens L. Ochoa and Castro; Captain Beasley; Lieutenant L. Lopez; Sergeant M. Whiteman; Chief Medical Officer Ellen Greenman; Medical Doctors P. De Paulo, S. Abdou, Tang, Campbell, and M. Boparia; Dentists W. F. Jennings and D. Lindquist; Licensed Vocational Nurse ("LVN") Keister; Registered Nurse S. Malogi; CEO for Health Care Services D. B. McElroy; Surgical Dentist A. Janette at Twin Cities Community Hospital; Twin Cities Community Hospital and Does 1-10 as defendants. Plaintiff seeks money damages and injunctive relief.

Plaintiff alleges the following: On December 22, 2007, Plaintiff was attacked and assaulted on Facility IV, which is the sensitive needs yard ("SNY") at ASP. As a result of the attack, Plaintiff received a left mandibular body fracture and left mandibular subcondular fracture ("broken jaw"). On the day of the attack, Plaintiff informed Sergeant Whiteman that his jaw was broken. Defendant Whiteman escorted Plaintiff to the Facility IV Clinic for evaluation. The LVN on duty made a determination that Plaintiff's condition was a broken jaw, but Defendant Whiteman failed to have the examination and diagnosis documented on a "7219 medical report" of injury or unusual occurrence. Compl, p. 11:19-22. On December 23, 2007, Defendant Whiteman asked LVN Salinas to sign a "7219 medical report" for the previous day.

On December 26, 2007, x-rays were taken at the infirmary verifying a broken jaw. Plaintiff was sent back to Facility IV in extreme pain. On December 28, 2007, Plaintiff spoke with LVN Barajas about the broken jaw and was told to submit a CDCR medical report form. As Plaintiff was unable to eat and was in excruciating pain, LVN Barajas notified Defendant Jennings, who had Plaintiff admitted to the Outpatient Housing Unit ("OHU").

Surgery was completed on December 31, 2007. Plaintiff claims the operation performed by Defendant Janette was grossly inadequate and departed from established standards. Plaintiff alleges that the placing of screws into the mandible mental nerve by Defendant Janette was intentional recklessness. Compl. p. 14:6-18. Plaintiff also claims Twin Cities Community Hospital is responsible for the inadequate medical care by failing to monitor Defendant Janette on December 31, 2007. Compl. p. 16:17-27.

During Plaintiffs stay in the OHU, inmates performed health care services in the preparation of therapeutic diets. Plaintiff suffered from a condition that caused difficulty in eating regular diets. While in the OHU, he was forced to use his fingers to assist in completing a bowel movement. Compl. He asserts that certain defendants failed to provide him a special diet. Compl. p. 16:4-8.

On April 27, 2010, Plaintiff was seen by Defendant Tang and was "told that his medical condition was a dental problem and was sent back to his housing unit." Compl. P. 17: 20-21. Defendant Tang refused to look at a first level appeal response verifying that Plaintiff's issues should be addressed to the medical department. Defendant Tang also refused to examine Plaintiff or renew his pain medication. Plaintiff continued to suffer extreme pain and discomfort. Compl. P. 17:18-18:1.

On May 15, 2010, Defendant LVN Keister cancelled Plaintiff's physician referral after he refused to sign an acknowledgment to stop taking medication. Defendant Keister refused to examine Plaintiff or take his vital signs. Compl. pp. 16:-17:17.

Plaintiff claims that certain defendants repeatedly delayed performing or ordering medical tests. He also claims that certain defendants ignored his pleas of pain and discomfort from December 31, 2007, through February 26, 2009. Compl. p. 13:8-14:5.

Plaintiff also alleges that certain defendants failed to perform adequate investigations of his health care ...


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