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Leo Logwood v. K. Lemay

January 6, 2012

LEO LOGWOOD,
PLAINTIFF,
v.
K. LEMAY, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 1) AMENDED COMPLAINT DUE IN THIRTY DAYS

Screening Order

I. Screening Requirement

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 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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

A. Summary of Complaint

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Solano State Prison, brings this civil rights action against correctional officials employed by the CDCR at Corcoran State Prison, where the events at issue occurred. Plaintiff names as defendants the following individuals: Licensed Vocational Nurse (LVN) K. Lemay; Dr. Kocsis-Diaz, M.D.; Dr. Schuster, M.D.; Correctional Officer (C/O) M. Vidaurri; Sergeant John Doe. Plaintiff sets forth a claim of inadequate medical care.

B. Medical Care

At the time of his arrival at Corcoran, Plaintiff suffered from injuries resulting from prior gunshot wounds, and used crutches and a leg brace. While at Corcoran, Plaintiff was prescribed twice daily doses of morphine for pain. (Compl. ¶ 30.) On September 27, 2007, Plaintiff was scheduled for a battery of tests to determine the source of pain in his right leg and foot. (Compl. ¶ 44.) That morning, Plaintiff appeared at the medication window for his morning doses of morphine. Nurse Lemay refused to provide the medication on the ground that "she did not know what kind of tests plaintiff was scheduled to take." (Compl. ¶¶ 46, 51.) Nurse Lemay concluded that issuing Plaintiff pain medication, without consulting with a physician, was "contraindicative to plaintiff's upcoming tests." (Compl. ¶ 52.) Later that day, Plaintiff was transported to an outside medical facility to undergo the scheduled tests. The tests could not be performed because Plaintiff was in too much pain. (Compl. ¶¶ 55, 56.) Plaintiff filed an inmate grievance regarding Nurse Lemay's refusal to issue Plaintiff his pain medication on September 27, 2007.

Plaintiff alleges that on October 20, 2007, Nurse Lemay filed false information in Plaintiff's medical record in reprisal for filing a grievance. On the same day, C/O Vidaurri filed false information on a CDC form 128-B, general chrono, "in conjunction with Nurse Lemay." (Compl. ¶¶ 57, 58.) Pursuant to that information, on October 22, 2007, Dr. Kocsis-Diaz revoked Plaintiff's lower bunk status, lifted his light duty restriction and had his crutches taken away. (Compl. ¶ 59.)

As a consequence of having to climb up to a top bunk, an old wound opened. Plaintiff jumped down from the top bunk, aggravating his old gunshot wound. Plaintiff immediately notified medical staff of this condition. (Compl. ¶ 62.) Plaintiff alleges that after two months, he was seen by Dr. Schuster. During this time, his stomach "continued to ooze green pus and to bleed." (Compl. ¶¶ 65, 66.) Dr. Schuster examined Plaintiff, advised him that he had an abscess, and that he would not see him again for four months. (Compl. ¶ 67.)

On December 23, 2007, Plaintiff met with Chief Medical Officer Luca regarding an inmate grievance filed by Plaintiff regarding his low bunk chrono. Dr. Luca reissued the lower bunk chrono, authorized a cane for Plaintiff, and prescribed pain medication. (Compl. ΒΆ 71.) Plaintiff alleges that he never received the medication prescribed by Dr. Luca. On January 28, 2008, Plaintiff was transferred to ...


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