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Fernando Fulgar v. Jerry Brown

March 8, 2012

FERNANDO FULGAR,
PLAINTIFF,
v.
JERRY BROWN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER STRIKING UNSIGNED AMENDMENT TO COMPLAINT (Doc. 9)

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND WITHIN THIRTY DAYS (Doc. 1)

First Screening Order

I. Screening Requirement and Standard

Plaintiff Fernando Fulgar, a prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 25, 2011. On June 27, 2011, Plaintiff filed an unsigned partial amendment to the complaint. As set forth in section III, Plaintiff may not amend piecemeal, and unsigned filings cannot be considered. Fed. R. Civ. P. 11(a); Local Rule 131. Therefore, the unsigned amendment will be stricken from the record.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Eighth Amendment Claim

A. Summary of Allegations

Plaintiff, who is currently incarcerated at La Palma Correctional Center in Eloy, Arizona, brings this action against Governor Jerry Brown, California Department of Corrections and Rehabilitation (CDCR) Director Matthew Cate, the Warden of Kern Valley State Prison (KVSP), and the Warden of Correctional Training Facility (CTF) for violating his rights under the Eighth Amendment of the United States Constitution.

Plaintiff alleges that on or around January 6, 2008, he was working out on the yard at KVSP when he slipped and fell from the bars. Plaintiff injured the deep tissue and/or cartilage in his chest. Plaintiff was evaluated by medical staff but sent back to his cell without any treatment. Since his injury, Plaintiff has experienced severe chest pain, but despite his repeated requests, he has been denied medical treatment and any further evaluation of his injury, including a CT scan or an MRI. Plaintiff alleges that he has been accused of faking his injury, and he has been told that the state is broke and does not want to spend the money for outside testing.

Plaintiff was subsequently transferred to CTF in Soledad, where he was also denied medical treatment for his injury, accused of faking his injury, and told the state cannot afford to send him out for evaluation. Plaintiff was then transferred to a series of facilities out of state to help alleviate overcrowding in California's prisons. (Docs. 1, 7, 10.) At the time this action was filed, Plaintiff was at Florence Correctional Center (FCC) in Florence, Arizona, and he alleges that officials there noted his ...


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