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Florence Walker v. California Department of Corrections and

November 16, 2011

FLORENCE WALKER,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND
REHABILITATION, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, AND THAT THE DISMISSAL BE SUBJECT TO 28 U.S.C. § 1915(g) (Doc. 13.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS

I. RELEVANT PROCEDURAL HISTORY

Florence Walker ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 10, 2009. (Doc. 1.) On February 24, 2010, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On March 18, 2010, Plaintiff filed the First Amended Complaint. (Doc. 9.) On April 18, 2011, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On June 21, 2011, Plaintiff filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 13.)

II. SCREENING REQUIREMENT

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 only 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.'" Id. While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.

III. SUMMARY OF SECOND AMENDED COMPLAINT

Plaintiff is incarcerated at the Central California Women's Facility in Chowchilla, California, where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants the California Department of Corrections and Rehabilitation ("CDCR"), the Appointments Department of the CDCR, Dr. Hermosia, Dr. Sakata, MTA-RN Williams, and MTARN Green ("Defendants").

Plaintiff complains of inadequate medical care between May 2008 and September 2008, alleging as follows. In May 2008, Plaintiff was seen by MTA-RN Williams for a skin condition, which Williams thought was a spider bite or ringworm. Plaintiff informed Williams that she had eczema, but Williams did not look into this probability. The CDCR's Appointments Department never scheduled the referral requests to be seen by MTA-RN Williams.

In August 2008, Plaintiff was seen twice in the infirmary by Dr. Hermosia. The first time, Plaintiff had a one-inch-diameter open wound on her outer left hand which was oozing pus. A rash had appeared on Plaintiff's hands and arms and was beginning to spread to her neck and face area. Dr. Hermosia looked at the wound and said there was no need for any follow-up. Plaintiff informed Dr. Hermosia that she had met with MTA-RN Williams three months before. Dr. Hermosia did not give Plaintiff any treatment. Dr. Hermosia did not even give Plaintiff bandages, anti-bacterial treatments, or Benadryl for her open wound. Dr. Hermosia did not schedule any follow-ups by the C-yard doctor. About a week later, Plaintiff saw Dr. Hermosia again. By now, the rash was covering Plaintiff's face and beginning to enter her ears and eyes. Plaintiff's blood pressure was elevated, and watery blisters had formed, causing unbearable itching. Plaintiff's right ankle had an open wound that was oozing pus. Dr. Hermosia said there was nothing he could do and told Plaintiff to submit a request to see the C-yard doctor for follow-up.

On a later occasion, Plaintiff had trouble breathing and her blood pressure was elevated. Dr. Sakafi threatened Plaintiff with disciplinary action for initiating a medical emergency because of these symptoms. A couple of days later, Plaintiff was escorted for medical care by a correctional officer because she was vomiting on the yard after breakfast. On these two occasions, MTA-RN Williams went to Dr. Sakafi's office and told him there was a medical emergency he should attend to. Dr. Sakafi replied that Plaintiff should submit a request to be seen by the C-yard doctor. Plaintiff was given no treatment.

Lack of treatment caused scarring, and Plaintiff's blood pressure became elevated because of the pain and suffering she endured for three months.

Plaintiff does not request any relief in the Second ...


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