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Michael Eugene Hollis v. Dr. Laird

March 21, 2012

MICHAEL EUGENE HOLLIS,
PLAINTIFF,
v.
DR. LAIRD, 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 Michael Eugene Hollis, a federal prisoner proceeding pro se and in forma pauperis, filed this civil rights action on May 10, 2011. 42 U.S.C. § 1983; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). 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 threadbare 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 (2007)) (quotation marks omitted). 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) (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 Claims

A. Summary of Allegations

Plaintiff, a federal prisoner currently incarcerated at Big Spring Federal Correctional Institution in Big Spring, Texas, brings this section 1983 action against Sheriff Margaret Mims, Dr. John Laird, Commander John or Jane Doe, and other unspecified Doe defendants for violating his rights while he was detained at the Fresno County Jail pending criminal proceedings in the Eastern District of California. Plaintiff also names Russell Yorke with the United States Marshals Service as a defendant.*fn1 Plaintiff seeks both injunctive relief and damages for the violation of his rights.

Plaintiff arrived at the Fresno County Jail on August 19, 2008, as a pretrial detainee and he began experiencing problems with intestinal irregularity. On August 28, 2008, Plaintiff bought Metamucil, an over-the-counter (OTC) laxative, from the commissary, but despite taking both packets at once, his problem persisted and on August 29, 2008, he submitted a sick call slip seeking medical care. Plaintiff had surgery in 2004 to remove an anal fistula which was half in and half out of his body, and that old wound became aggravated and began bleeding and causing him great pain.

Plaintiff submitted sick call slips until September 4, 2008, when he filed a grievance alerting jail staff to his previous fistula surgery and stating he had been constipated for six days and his bowels were locked and bleeding. (Comp., court record p. 17.) Plaintiff identified the lack of a laxative as the problem. (Id.)

On September 4, 2008, Plaintiff tried to buy milk of magnesia from the commissary, as he had been directed to do by jail nurses, but it was out of stock. Extremely distressed, Plaintiff continued to submit sick call slips and complain to the nurses about the denial of the common OTC medication. Plaintiff was suffering from pain, sharp cramps, bloating, rectal bleeding, and loss of sleep. Plaintiff alleges that the jail's written policy does not address the situation faced by Plaintiff where inmates are expected to and directed to purchase an OTC medication for a medical need, but it is out of stock. Plaintiff alleges that the availability of commissary supplies is hit-or-miss by the week.

Plaintiff's condition continued to worsen until a correctional officer took Plaintiff to the front of the late night sick call line on September 7, 2008, informed the nurse Plaintiff had not had a bowel movement in ten days, and asked if Plaintiff could be helped. The nurse provided Plaintiff with four doses of milk of magnesia, had Plaintiff drink warm water for a while, and ...


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