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Bernard Raymond Pearle Van Pelz v. Teri Gonzales

February 13, 2012

BERNARD RAYMOND PEARLE VAN PELZ, PLAINTIFF,
v.
TERI GONZALES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

ORDER RE DISMISSAL OF COMPLAINT WITH LEAVE TO AMEND

Pro se Plaintiff Bernard Raymond Pearle Van Pelz (hereinafter referred to as "Plaintiff") filed a Civil Rights Complaint Pursuant to 42 U.S.C. §1983 on January 18, 2012, pursuant to the Court's Order re Leave to File Action without Prepayment of Full Filing Fee.

BACKGROUND

Plaintiff alleges that his Eighth and Fourteenth Amendment rights have been violated by Defendants depriving him of proper medical attention/treatment.(Complaint at 5.) On January 15, 2011, Plaintiff, 81 years old, was walking down a corridor when an inmate in the television day room opened the door in an unusually fast and forceful manner. Id. The door hit Plaintiff with great force on his left temple in front of his left ear. Plaintiff alleges he almost lost consciousness and fell to the ground with great force. Plaintiff weighs 250 pounds and is 6 foot 4 inches tall. Plaintiff alleges he landed on his left elbow and shoulder. His elbow was swollen and he was initially diagnosed with acute bursitis; thereafter, the shoulder injury was diagnosed as a large tear to the rotator cuff. Id. Plaintiff alleges a loss of mobility in his left arm and constant pain. (Id.)

Plaintiff was taken by ambulance to the facility hospital and x-rays were taken. Plaintiff alleges that x-rays only show bones and no bones were broken. An MRI was ordered weeks later after Plaintiff was seen by an orthopedic specialist, Dr. Piatek of San Luis Obispo. (Id.) After a second visit with Dr. Piatek, he recommended surgical repair to Plaintiff's rotator cuff. (Id. at 6.) Plaintiff alleges this information was conveyed to Defendant Dr. Greenman and her medical board, which they denied pending a second opinion.

A few weeks later, Plaintiff was transported to see Dr. Kovall in Templeton. A second visit to Dr. Kovall was necessary because Plaintiff was taken to his office without the MRI results. Plaintiff alleges that Dr. Kovall give Defendant Dr. Greenman the recommendation she wanted. Plaintiff alleges Dr. Kovall "intimated that at my age, a repair would be a waste of money and the treatment was denied." (Id. at 6.)

Plaintiff has named the following Defendants: Susan Hubbard, Director of Prisons; Teri Gonzalez (Warden); Dr. Ellen Greenman (Chief Medical Officer); Dr. Paul Gallagher (Plaintiff's doctor); and John/Jane Does.

Plaintiff seeks nominal damages of $850 and compensatory damages in the amount of $100,000. (Complaint at 6.)

STANDARD OF REVIEW

Because Plaintiff is seeking to proceed in forma pauperis, the Court shall review such a complaint "as soon as practicable after docketing." Pursuant to 28 U.S.C. §1915(e)(2), the District Court is required to dismiss a complaint if the Court finds that the complaint

(1) is legally frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §1915(e)(2)(B) (re: all in forma pauperis complaints).

A complaint may also be dismissed for lack of subject matter jurisdiction, pursuant to F.R.Civ.P. 12(b)(1). Neitzke v. Williams, 319, 327 n.6, 109 S.Ct. 1827 (1989) (unanimous decision)(patently insubstantial complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. When considering a dismissal, a Court must accept as true all allegations and material facts and must construe those facts in a light most favorable to the plaintiff. Resnick v. Hays, 213 F.3d 443, 447 (9th Cir. 2000). However, a "court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Nor is a Court "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. 1937, 1949, 172 L.Ed.2d 868 (2009)(citing Twombly, 550 U.S. at 556.) "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant acted unlawfully." (Id.) Although a complaint need not include "'detailed factual allegations,' ... [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of the cause of action will not do.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). The Complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" (Id. at 1950 [quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted). "[A] well-pled complaint may proceed even if it appears that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974)).

In civil rights cases in which the Plaintiff appears pro se, the pleadings must be construed liberally, so as to afford the plaintiff the benefit of any doubt as to the potential validity of the claims asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). If, despite such liberal construction, the Court finds that the complaint should be dismissed for failure to state a claim, the Court has the discretion to dismiss the complaint with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). A pro se litigant should be given leave to amend, unless it is clear that the deficiencies of the complaint ...


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