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Timothy Howard v. J. Wang

March 30, 2012

TIMOTHY HOWARD,
PLAINTIFF,
v.
J. WANG, ET AL., MAY BE GRANTED DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF Doc. 28 OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations

I. Procedural History, Screening Requirement, and Standard

On September 28, 2010, Plaintiff Timothy Howard ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On January 13, 2011, Plaintiff filed a first amended complaint. Doc. 16. On September 16, 2011, the Court issued a screening order, dismissing Plaintiff's first amended complaint, with leave to amend. Doc. 26. On October 14, 2011, Plaintiff filed his second amended complaint. Doc. 28.

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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

While 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, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Allegations in Plaintiff's Second Amended Complaint

In Plaintiff's second amended complaint, he names Defendants J. Wang and Edgar Clark, Medical Doctors who were employed at Corcoran State Prison ("Corcoran"). 2d Am. Compl. at 1-3, Doc. 28. On August 21, 2009, Plaintiff sustained injuries to his left foot from a cell extraction that required examination. Id. at 3, 5-6. He was taken to the hospital at Corcoran, and Defendant Dr. Wang informed Plaintiff that his left foot was sprained with possible fracture but noted that Plaintiff cannot walk because he is paralyzed. Id. at 6-7. Dr. Wang ordered Plaintiff returned to his cell with D.P.W. status (full-time wheelchair user) with pain / seizure medication and no weight on the left foot. Id. Defendant Dr. Clark then arrived after Dr. Wang left the room. Id. Dr. Clark was hostile, unprofessional, and verbally abusive. Id. Dr. Clark said he spoke with the investigative services unit, and they wanted Plaintiff removed from the disability program and left inside his cell with no medical appliances and no pain medication. Id. Plaintiff said that their version of the events was false and that he never stood, ran, kicked, or broke any appliance. Id. Defendant Clark then approved his transfer to Folsom. Id. at 8. Plaintiff was transferred without any orders for medication or chronos for appliances such as a wheelchair. Id. Later that day, Nurse C. Espinoza completed a form for appliances and pain / seizure medication. Id. at 8-9.

Plaintiff could not walk and was forced to crawl on his stomach for food and bathroom and when he did not crawl fast enough, custody would refuse to feed Plaintiff. Id. at 9. On August 25, 2009, medical staff at CSATF reviewed Plaintiff's medical chart, ordered pain / seizure medication, and had his left foot x-rayed. Id. On March 30, 2010, an neurologist examined Plaintiff and diagnosed him as paralyzed. Id. Plaintiff had to wait seven months to see a neurologist. Id. at 10. Defendant Clark denied medication and appliances in retaliation. Id. The neurologist denied Plaintiff a wheelchair. Id. Plaintiff alleges cruel and unusual punishment. Id. at 14.

For relief, Plaintiff seeks declaratory relief and nominal, compensatory, and punitive damages. Id. at 3.

III. Legal Standard and Analysis for Plaintiff's Claims

A. Eighth Amendment Deliberate Indifference to ...


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