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Adonis Gaynor v. J. Clark Kelso

January 30, 2012

ADONIS GAYNOR,
PLAINTIFF,
v.
J. CLARK KELSO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On April 22, 2010, Plaintiff Adonis Gaynor, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.) Plaintiff's Complaint is now before the Court for screening.

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF COMPLAINT

The Complaint identifies Warden Ken Clark and Federal Receiver J. Clark Kelso as Defendants in this action and alleges the following:

Plaintiff is infected with the "Herpes Simplex Virus - 2" and was being treated with a CDC approved medication called "gabapentin." (Compl. at 19, 20.) Taking "gabapentin" caused the following side effects: "unusual body movement, difficulty breathing, and other severe symptoms." (Id. at 20.) Through independent research Plaintiff discovered a drug that he believed to be a more effective medication with fewer side effects. (Id.) Plaintiff's request for the superior drug was denied. (Id. at 21.) Plaintiff continued to experience various side effects and on April 3, 2010, he had an epileptic seizure.*fn1 (Id. at 21.)

IV. ANALYSIS

To state a claim under Section 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United States was violated and

(2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda ...


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