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Ken Burke v. A. Enenoh

January 31, 2012

KEN BURKE,
PLAINTIFF,
v.
A. ENENOH, ET AL.,
DEFENDANTS.



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

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

Plaintiff Ken Burke ("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 jurisdiction by the Magistrate Judge. (ECF No 7.)

Plaintiff initiated this action on June 7, 2011. (Compl., ECF No. 1.) No other parties have appeared in the action. Plaintiff's Complaint is now before the Court for screening.

I. 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 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, ___ U.S. ___, ___, 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.'" 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.

II. SUMMARY OF COMPLAINT

Plaintiff is a prisoner currently housed at California Institution for Men. Plaintiff was previously incarcerated at California Substance Abuse Treatment Facility - Corcoran ("CSATF"), where all of the incidents underlying this action occurred. Plaintiff primarily alleges that his right to adequate medical care under the Eighth Amendment has been violated. He names the following parties as Defendants: 1) A. Enenoh, Chief Medical Officer ("CMO") at CSATF, and 2) CSATF's Pharmacy and Health Care System.

Plaintiff seeks a declaratory judgment, a trial, injunctive relief, punitive damages, compensatory damages, nominal damages, payment for the cost of the lawsuit, and any further relief justice may require.

Plaintiff alleges as follows:

Defendants provided Plaintiff with a potentially dangerous overdose of coumadin (warfarin), a blood thinner and anti-coagulant. (Compl. at 3.) His doctor increased his daily warfarin dosage, and instead of replacing his old prescription for the new, the medical staff dispensed both prescriptions and gave Plaintiff two daily doses of warfarin. (Id. at 5-6.) The incorrect dosage stopped only when Plaintiff realized the error and refused to take the extra warfarin. (Id. at 4.) Plaintiff was given too much warfarin for a week from approximately August 3 to August 10, 2010. (Compl. at 4.) Despite the overdose, Plaintiff was not tested for internal bleeding or to determine if his warfarin levels were outside of the proper range. (Id.) Plaintiff is supposed to have a blood draw taken every month, but often has to remind the prison medical staff to do this. (Id. at 5.)

Plaintiff submitted a 602 appeal regarding this overdose. (Compl. at 3.) At the first level of review, R. Martinez, RN found that Plaintiff only received a single dose of warfarin, consisting of the correct 2.5 mg of warfarin that he had been prescribed. (Id. at 5.)

Plaintiff filed a second level appeal. (Compl. at 6.) In this appeal, he asked to be transferred to California Medical Facility in Vacaville to receive the proper treatment. (Id.) In response to Plaintiff's second level appeal, Defendant Enenoh found that the initial response to Plaintiff's appeal was incorrect. (Id.) Apparently Plaintiff's prescription had been changed, and instead of 2.5 mg of warfarin, Plaintiff received the correct 3.0 mg of warfarin during the time period at issue. (Id. at 6-7.)

Plaintiff filed a request for director's level review. (Compl. at 7.) In his request, Plaintiff stated that he was not assured that he had not been given an overdose of warfarin. (Id.) Plaintiff said he was given two different warfarin tablets during the time period in ...


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