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Richard Lopez v. Herrington

March 8, 2012

RICHARD LOPEZ,
PLAINTIFF,
v.
HERRINGTON, ET AL.,
DEFENDANTS.



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

FIRST SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE (Doc. 1)

First Screening Order

I. Screening Requirement and Standard

Plaintiff Richard Lopez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 8, 2011. 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); 28 U.S.C. § 1915(e)(2)(B)(ii).

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. Discussion

A. Allegations

Plaintiff, who is currently incarcerated at California Substance Abuse Treatment Facility and State Prison in Corcoran, brings this action against Licensed Vocational Nurses R. Nanitey, E. Vitto, and E. Negre, Chief Medical Officer Lopez, and Warden K. Herrington for violating his rights under the Eighth Amendment of the United States Constitution while he was incarcerated at Kern Valley State Prison in Delano, California.

Plaintiff alleges that on April 9, 2010, he noticed a pimple on his right buttock. By April 11, 2010, the pimple had tripled in size and was causing severe pain. Plaintiff filled out a written request for medical care and showed the pimple to Defendant Nanitey. Defendant Nanitey offered no advice or medical care and walked away.

On April 12, 2010, Plaintiff showed the pimple to Defendant Negro who did not offer Plaintiff any medical assistance and she intentionally discriminated against him.

On April 14, 2010, Plaintiff showed the pimple to Defendant Vitto and complained of flu-like symptoms, including weakness, hot flashes, chills, and aching muscles and bones, but Defendant stated he should have shown it to her earlier in the shift.

Plaintiff alleges that Defendants Nanitey, Negre, and Vitto knew he had a serious medical need, but they knowingly disregarded the risk to his health. Plaintiff also alleges that Defendants Lopez and Herrington knowingly disregarded an excessive risk to his health, and that Defendant ...


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