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Toni Levingston v. Bondoc

January 30, 2012

TONI LEVINGSTON,
PLAINTIFF,
v.
BONDOC, 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 DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On February 23, 2011, Plaintiff Toni Levingston, a 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'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).

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, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949--50.

III. SUMMARY OF COMPLAINT

Plaintiff is incarcerated at California State Prison at Corcoran, ("CSP-C"), where the alleged rights violations took place. (Compl., p. 1, 3-5, ECF No. 1.) He is classified as a limited mobility impairment prisoner, requiring housing restrictions in the form of a lower bunk and no stairs. (Compl. at 7, 22.) He alleges various medical concerns relating to acute chronic pain in his back, chest, legs, hips, and feet, as well as fecal leakage, vison, and weight. (Id. at 7-21.) He claims that Defendants were deliberately indifferent to his medical needs by failing to properly examine, diagnose, medicate and treat him, properly classify him as a permanently disabled,*fn1 and accommodate his medical condition. (Id. at 3-4, 7-83.) He also complains that Defendants denied him due process in his related prison grievances. (Id.)

Plaintiff names as Defendants,(1) Bondoc, Nurse Practitioner, (2) Clark, M.D., (3) Yu, M.D., (4) Liberstein, M.D., (5) Warren, Chief at California Prison Health Care Services, (6) Walker, Chief at California Prison Health Care Services, (7) Foston, Chief at Inmate Appeals Branch, (8) Jones, CCII, Appeals Coordinator, and (9) Lopez, Warden.

Plaintiff seeks an order directing an off-site medical opinion on his multiple medical concerns and compensatory damages. (Id. at 3.)

IV. ANALYSIS

A. Pleading Requirements Generally

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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