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Brian Lee Hanson, Jr. v. Dr. Subnoski

February 6, 2012

BRIAN LEE HANSON, JR.
PLAINTIFF,
v.
DR. SUBNOSKI,
DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

I.

INTRODUCTION

On December 1, 2011, pro se plaintiff Brian Lee Hanson, Jr. ("Plaintiff") filed a First Amended Complaint (the "FAC") pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). For the reasons stated below, the FAC is dismissed with leave to amend.*fn1

Congress mandates that district courts initially screen civil complaints filed by a prisoner seeking redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if the Court concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

II.

ALLEGATIONS OF THE COMPLAINT

Plaintiff names as defendant Metropolitan Detention Center ("MDC") Medical Doctor Subnoski ("Defendant"). (FAC at 3). Plaintiff sues Defendant solely in his official capacity. (Id.).

Plaintiff attempts to allege that his right to "fair and proper medical care" has been violated because Defendant prescribed Plaintiff "several medications which he failed to research against [his] medical history." (FAC at 5). Because Defendant prescribed Plaintiff improper medications, Plaintiff suffered an "overdose" and "was found in [his] cell on the floor because of a massive seizure." (Id.). Plaintiff states that he has "a history of seizures which [he] is taking medication for" and contends that the medication he was given by Defendant "was not meant for a person who suffers from a seizure disorder." (Id.). According to Plaintiff, such a warning was "clearly stated on the side effects label" and Defendant ignored those warnings.

(Id.). Because of Defendant's actions, Plaintiff "was in the ICU at White Memorial Hospital for eight days," six of which he was unconscious and that he "lost [his] speech, couldn't walk, and lost [his] memory for over five days." (Id.). Plaintiff contends that Defendant also violated his rights because even though Plaintiff requested to see Defendant on several occasions, Defendant "purposefully ignored [his] inmate request to staff form" [sic] and all of his requests went unanswered. (Id.).

Plaintiff seeks compensatory damages in the amount of $750,000. Plaintiff also seeks injunctive relief in the form of an order requiring the BOP Medical Board to "review Dr. Subnoski['s] medical judgment, behavior as well as his medical license." (Id. at 6).

III.

DISCUSSION

Pursuant to 28 U.S.C. ยง 1915A(b), the Court must dismiss Plaintiff's Complaint due to defects in pleading. Pro se litigants in civil rights cases, however, must be given leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d at ...


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