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Gilberto Garcia v. Bondoc

February 29, 2012

GILBERTO GARCIA,
PLAINTIFF,
v.
BONDOC, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 16)

CLERK SHALL CLOSE THE CASE

SCREENING ORDER

I. PROCEDURAL HISTORY

On September 22, 2009, Plaintiff Gilberto Garcia, 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 consented to Magistrate Judge jurisdiction. (ECF No. 6.) On June 8, 2011, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 11.) Plaintiff's First Amended Complaint (ECF No. 16) 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 FIRST AMENDED COMPLAINT

The First Amended Complaint identifies the following individuals as Defendants in this action: (1) Bondoc, Nurse Practitioner, Corcoran State Prison (Corcoran); (2) Wong, Nurse Practitioner, Corcoran; (3) McGuinness, Chief Medical Officer (CMO), Corcoran; (4) Wrigley, Nurse Practitioner, High Desert State Prison (High Desert); and (5) Swingle, CMO, High Desert. Plaintiff alleges the following:

In early August of 2007, Plaintiff arrived at Corcoran and underwent an initial medical screening. He complained of "abdominal and testicular pain." (Compl. at 10.) A nurse told Plaintiff that he would be referred to the "Dr. line for a check up." (Id.) Plaintiff was not immediately seen by a doctor, so he began filing medical requests. (Id. at 11.) Of the numerous medical care requests submitted by Plaintiff up until this time, Corcoran processed only two: on October 29, 2007, and January 1, 2008. (Id.)

On January 25, 2008 Plaintiff was called to see Defendant Bondoc. His pain had become intermittent but had spread beyond the testicles and into the hip, lower back, back of his legs, and feet. (Id.) Defendant Bondoc "asked questions regarding the pain" and examined Plaintiff's "abdomen by pressing her palm." (Id. at 13.) Bondoc diagnosed Plaintiff with a hernia and determined that it was not treatable until it ruptured. Bondoc did not perform the standard hernia exam or examine Plaintiff's testicles. (Id.) Plaintiff stated that he had other symptoms that he felt may be related; Bondoc told Plaintiff that new medical forms would be required for each symptom. (Id.) Plaintiff believed the symptoms were related to the underlying issue addressed in his health care request, while Bondoc believed that Plaintiff was trying to have unrelated symptoms treated under at one visit covered by a single co-payment. (Id. at 14.) Bondoc dismissed Plaintiff with his additional symptoms untreated. (Id.)

Plaintiff appealed the treatment provided and requested pain medication on February 4, 2008. Plaintiff then filed additional medical care requests. On April 9, 2008, Defendant Wong saw Plaintiff with regard to his medical appeal. (Id. at 16.) Plaintiff stated that his pain was worsening and affecting his ability to function on a daily basis. Wong prescribed ibuprofen and aspirin despite the fact that these medications had failed to treat his symptoms in the past. Wong also ordered x-rays of Plaintiff's hip. (Id.)

At a follow up appointment with Wong, Plaintiff stated that his symptoms continued to worsen, spread, and affect his daily activities. Plaintiff also advised that the medication was ineffective. In response, "Wong prescribed Naproxen, Mapap, and a cane." (Id. at 17.) Plaintiff thought the cane was unnecessary and thought that "Wong seemed to be prescribing unnecessary and inefective ...


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