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Robert E. Thompson v. J. Hartley

February 26, 2012

ROBERT E. THOMPSON,
PLAINTIFF,
v.
J. HARTLEY, 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 December 6, 2010, Plaintiff Robert E. Thompson, 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 has consented to Magistrate Judge jurisdiction. (ECF No. 5.)

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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393--94 (1989).

III. SUMMARY OF COMPLAINT

Plaintiff was incarcerated at the California Department of Corrections and Rehabilitation ("CDC-R"), Avenal State Prison ("ASP"), during the events alleged in the Complaint. (Compl. p. 4, ECF No. 1.) Plaintiff complains that Defendants were indifferent to his medical needs, applied excessive force, and failed to protect him from harm, violating his rights under the Eighth Amendment and under state law. (Compl. at 11-12.)

Plaintiff names the following Defendants at ASP in their respective individual and official capacities: (1) Hartley, Acting Warden, (2) Ndoh, Associate Warden, (3) Ochoa, Associate Warden, (4) Beasley, Correctional Captain, (5) Lopez, Correctional Captain, (6) Blackford, Correctional Lieutenant, (7) Contreras, Correctional Lieutenant, (8) Campbell, Correctional Lieutenant, (9) Grubb, Correctional Sergeant, (10) Crenshaw, Correctional Sergeant, (11) Tercero, Correctional Officer, (12) Fluentes, Correctional Officer, (13) Galen, Doctor, (14) Xavier Lara, Psychiatrist, (15) Church, Psychiatrist,*fn1 (16) Icke, Psychiatrist, (17) Doe #1, Doctor at ASP, (18) Doe #2, Pharmacist at ASP, (19) Doe #3, Pharmacist at ASP, (20) Doe #4, Pharmacist at ASP (Id. at 4-11.)

On October 25, 2007, Defendant Galen ordered anti-psychotic medication, in pill form, be provided to Plaintiff. (Id. at 12.) On November 16, 2007, Defendant Lara ordered delivery of the medication by both injection and pill. (Id.) On November 21, 2007, Defendant Icke continued the medication, Plaintiff advised that he had not received his injection. (Id.) Defendants Does #2-4 failed to provide "the prescribed [anti-pyschotic] shot to the appropriate people." (Id. at 13.)

On December 9, 2007, Defendant Lara re-ordered the shots for a 90 day period, reducing in half Plaintiff's pill-form anti-psychotic medication. (Id.) Defendants Doe #2-4 again failed to deliver the shots. (Id.)

On December 21, 2007, Defendant Church, noting the shots had not been received, re-ordered the shots and discontinued the pill-form anti-psychotic. (Id.)

Plaintiff received his first shot of anti-psychotic medication on December 26, 2007, and it took "two weeks to [settle] into [his] system." (Id.)

As a result of the foregoing, Plaintiff was on half the prescribed dose of anti-psychotic medication during the period December 9, 2007 to December 21, 2007, and was without anti-psychotic medication during the period December 21, 2007 to December 27, 2007. (Id.)

On December 27, 2007, Plaintiff claims he was in a "psychotic state", went to the medical clinic, was evaluated by Doe #1, diagnosed with anxiety syndrome and told to return to his housing facility, (Id. at 14), Plaintiff refused, believing he would be killed if he did so. (Id. at 15.)

Defendants Crenshaw, Tercero, and Campbell asked him either to name the potential killer or return to his unit. Plaintiff refused and was then "pepper-sprayed directly in the face, taken to the ground, hit and kicked then handcuffed ... then pulled up by [the] arms ...[t]earing [his] right arm [r]otator cuff ... [then] thrown ... face first onto the ground and then hit and kicked several more times by Defendant Tercero." (Id.)

He was then interviewed by Defendants Grubb. Several hours passed before he was allowed a shower and received clean boxer shorts. He was placed in Administrative Segregation and several more hours passed before he was given additional clothes, towel, blanket, toilet paper and soap. (Id. at 16.)

On December 28, 2007, he was interviewed by Defendant Contreras. (Id.)

On January 15, 2008, based on a report by Defendants Beasley, Tercero and Grubb, Plaintiff was charged with a (CDC 115) serious rules violation. (Id. at 17.) He received a mental health evaluation on January 15, 2008. His case was referred to the District Attorney for battery on a peace ...


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