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Esrom Madrid v. R. Lopez

February 10, 2012

ESROM MADRID,
PLAINTIFF,
v.
R. LOPEZ, 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 A FIRST AMENDED COMPLAINT (ECF No. 1)

AMENDED COMPLAINT DUE IN THIRTY DAYS

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. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(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

A. Summary of Complaint

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Corcoran State Prison, names the following individual defendants employed by the CDCR at CSP Corcoran: Warden R. Lopez; Chief Medical Officer E. Clark; L. Karan, M.D.; Family Nurse Practitioner (FNP) Dhah; Dr. Neubarth, M.D.; FNP Bondoc; Dr. Brar, M.D.; Dr. Kim, M.D. Plaintiff also names Secretary of Corrections Cate and Clark Kelso, the former Receiver for the CDCR Prison Health System.

Plaintiff suffered a gunshot wound to the upper chest in 2007. Plaintiff suffers from chronic nerve damage, severe back pain and muscle spasms. Plaintiff is currently mobility impaired "due to the inability of complete right leg function." Plaintiff alleges that on August 19, 2009, and September 9, 2009, he was seen by Dr. Kim "regarding severe pain and excruciating burning all through my back and leg, no treatment was provided."

On December 23, 2009 and January 26, 2010, Plaintiff was seen by Dr. Brar "with regard to my nerve damage and severe back pain." Plaintiff alleges that no treatment was provided and no relief granted.

On April 5, May 4, and May 25, 2010, Plaintiff was seen by Dr. Karan, "where various issues were raised, no treatment was provided."

On May 12, 2010, Dr. Neubarth received an inmate appeal from Plaintiff. Plaintiff alleges that Dr. Neubarth "concurred with the response of Dr. L. Karan ...


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