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Joel P. Whitney v. J. Walker

March 15, 2012

JOEL P. WHITNEY,
PLAINTIFF,
v.
J. WALKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING DEFENDANT AND CLAIM FROM THIRD AMENDED COMPLAINT

Screening Order

I. Background

Plaintiff Joel P. Whitney ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. He filed his Complaint on October 20, 2010.*fn1

Plaintiff filed his First Amended Complaint on April 21, 2011. On May 9, 2011, the Court screened Plaintiff's First Amended Complaint and found that it stated cognizable claims against Defendants Walker, Greenman, McElroy, Boparai, Malogi, and Campbell for deliberate indifference to a serious medical need, but failed to state a claim against Defendant Hartley. Plaintiff was provided the opportunity to file a Second Amended Complaint or notify the Court of his willingness to proceed only on the cognizable claims.

On June 3, 2011, Plaintiff filed his Second Amended Complaint. The Court screened the Second Amended Complaint on October 14, 2011, and found that Plaintiff failed to state a claim against any Defendant. The Court allowed Plaintiff one final opportunity to amend.

Plaintiff filed his Third Amended Complaint on November 17, 2011.

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 or malicious," 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).

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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Third Amended Complaint

Plaintiff is currently incarcerated at Avenal State Prison ("ASP") in Avenal, California, where the events giving rise to this action occurred. He names Chief of Prison Health Care Services J. Walker, Chief of Prison Health Care L. D. Zamora, Warden James D. Hartley, Chief Medical Officer Ellen Greenman, CEO of Health Care Services Donald B. McElroy, Chief Physician and Surgeon M. Boparai, Registered Nurse S. Malogi, Medical Doctor G. Campbell, Health Care Appeals Coordinator J. Nay, and Chief Medical Executive Robert Chapnick as Defendants.

Plaintiff alleges that he arrived at ASP on November 5, 2007, in good health. On January 21, 2009, Defendant Campbell requested and signed a "Physician Request for Services" form after lab results showed elevated PSA levels. Dr. Campbell requested that Plaintiff be screened for cancer and the form was sent to Dr. Gene Hori in San Luis Obispo.

On May 22, 2009, Dr. Hori diagnosed Plaintiff with prostate cancer and sent his findings back to ASP's medical department. On the same date, ASP Dr. Abdou signed Plaintiff's lab report showing a PSA level of 8.32.

Dr. Hori referred Plaintiff to Dr. Longo at Templeton Radiation Oncology Medical Center for radiation treatments. Dr. Longo stated that Plaintiff had "clinically significant prostate cancer." Plaintiff alleges that his ...


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