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Sebren A. Pierce v. Lopez

March 29, 2012

SEBREN A. PIERCE,
PLAINTIFF,
v.
LOPEZ, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 12) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On March 18, 2010, Plaintiff Sebren A. Pierce, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On June 4, 2010, Plaintiff voluntarily filed an amended complaint. (ECF No. 12); Fed. R. Civ. P. 15(a). Plaintiff's First Amended Complaint is now before the Court for screening.

II. 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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

The First Amended Complaint identifies the following Corcoran State Prison (Corcoran) officials as Defendants in this action: (1) Raul Lopez, Warden; (2) Dr. Edgar Clark, Chief Medical Officer; and (3) Dr. Julian Kim, attending physician.

Plaintiff alleges the following:

On January 13, 2010, yard medical staff prescribed and provided Plaintiff with an antibiotic for an ear ache. (Compl. at 3.) "The antibiotic was prescribed and given to Plaintiff without a verbal or written warning of the side effects, that should prompt Plaintiff to discontinue use and seek medical attention . . . ." (Id. at 3, 4.) On January 17, 2010, Plaintiff was sent to the emergency room with a 102.8 degree temperature and the following symptoms: "headache, insomnia, depression, vertigo, fatigue, anxi[e]ty, fever, chills, drowsiness, nausea, and abdominal pain." (Id. at 4.) Plaintiff was admitted to the prison hospital and given a new antibiotic. The following day Plaintiff's side-effects continued, a rash developed throughout his body, and his temperature rose to 103.2 degrees. (Id.)

The First Amended Complaint then repeats the factual allegations above nearly verbatim. (Id. at 5.) However, there Plaintiff prefaces each of the two recitations of the above factual allegations with the following paragraph:

Defendant Warden, Raul Lopez, by and through his a g e n t s / o f f i c e r s / e m p l o y e e s h a v e i m p l e m e n t e d systems/customs/policies/practices, at Corcoran State Prison, that violated Plaintiff's U.S. Constitutional rights, and were deliberately indifferent to his health care needs. Defendant Warden , Raul Lopez, was/is responsible for the training/practices/customs/polices [sic] of Corcoran State Prison. Warden Lopez failed to ensure that his ...


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