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D. Ellis v. M. Bopari

January 9, 2012

D. ELLIS,
PLAINTIFF,
v.
M. BOPARI, 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)

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. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1).

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

The events at issue in this action occurred at Avenal State Prison, where Plaintiff is currently housed. Plaintiff claims that he was subjected to inadequate medical care. Plaintiff names the following individual defendants: CDCR Director M. Cate; J. Walker, Chief of Third Level Appeals; J.D. Hartley, Warden at Avenal State Prison; Chief Medical Officer E. Greenman; D. McElroy, CEO of Health Care; Dr. M. Bopari, M.D.

Plaintiff's allegations stem from an injury suffered during an altercation on January 16, 2010. Plaintiff presented to medical for treatment. The nurse on duty examined Plaintiff's hand, noted swelling, bleeding and a cut on Plaintiff's right hand. Plaintiff was referred to the prison emergency room for an x-ray. At the emergency room, Plaintiff was advised that, due the long holiday weekend, he would not receive an x-ray.

On January 19, 2010, Plaintiff's hand was x-rayed. The x-rays revealed a fracture in Plaintiff's right little finger and right ring finger. Plaintiff's hand was re-splinted, told that he would see an orthopedic physician in two weeks for further evaluation. Plaintiff was prescribed Tylenol for pain. Plaintiff alleges that at this point, his hand was swollen, discolored and extremely painful.

On January 21, 2010, Plaintiff was seen at the yard clinic for a follow-up evaluation. Plaintiff was seen by a nurse, "given no treatment," and returned to his housing unit. (Compl. 4:18.) On January 26, 2010, Plaintiff was seen in the yard clinic by Dr. Teharpour (not a named defendant).

Dr. Teharpour noted the discoloration and swelling, and prescribed codeine for the pain.

On January 28, 2010, Plaintiff was transported to Bakersfield and seen by an outside physician. Plaintiff was advised that he would have pins placed inside the fractured bones in order for them to heal properly. A cast was placed on Plaintiff's hand. On February 10, 2010, the surgery was performed, and pins were placed inside Plaintiff's hand.

On February 16, 2010, Plaintiff reported to the yard clinic, "experiencing a great deal of pain." (Compl. 6:26.) Plaintiff complained that the pain was so great that he could not sleep. Plaintiff was told to submit a health care request. Plaintiff filed an inmate grievance regarding his medical treatment. On April 16, 2010, Plaintiff was ...


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