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Genaro Campos, Jr v. State A Claim Srivastava

March 28, 2012

GENARO CAMPOS, JR.,
PLAINTIFF,
v.
STATE A CLAIM SRIVASTAVA, ET AL.,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL WITH PREJUDICE OF PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO OBJECTIONS DUE WITHIN THIRTY DAYS

(ECF No. 11)

Plaintiff Genaro Campos, Jr. ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff initiated this action on April 13, 2010. (Am. Compl., ECF No. 1.) No other parties have appeared in this action. In a January 23, 2012 Screening Order, the Court dismissed Plaintiff's Complaint with leave to amend for failure to state a claim. (ECF No. 10.) Plaintiff filed a First Amended Complaint on February 27, 2012. (ECF No. 11.) Plaintiff's First Amended Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff's First Amended Complaint also fails to state a claim.

I. 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 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, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic 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.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

II. SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT

It appears Plaintiff previously was housed at some unnamed California state prison.*fn1

Plaintiff is no longer in custody. (ECF No. 9.) He sues the following individuals for inadequate medical care under the Eighth Amendment: 1) Dr. Srivastava, a doctor/surgeon, and 2) Dr. Zepp,a state prison doctor.

Plaintiff asks that his hand be repaired, that Defendants cover his legal and medical costs, and that he be awarded $4.4 million in damages.

Plaintiff alleges as follows:

While incarcerated, Plaintiff suffered from painful carpal tunnel syndrome.*fn2 (Am. Compl. at 3.) At some point during his treatment Defendant Zepp referred Plaintiff to a Doctor Brenner for a surgery consultation. (Id.) However, a Defendant Srivastava performed the surgery on Plaintiff's left hand, purportedly because he charged a lesser fee than Doctor Brenner. (Id.) Plaintiff noticed no improvement after surgery. (Id.) Defendant Zepp referred Plaintiff back to Defendant Srivastava for removal of the stitches in Plaintiff's hand, but Defendant Srivastava refused to see him. (Id.) Defendant Zepp sent Plaintiff to Doctor Brenner who simply sent Plaintiff back to ...


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