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Patrick F. Demery v. A. Enenmoh

April 20, 2012

PATRICK F. DEMERY,
PLAINTIFF,
v.
A. ENENMOH,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF STATE LAW CLAIMS FOR LACK OF JURISDICTION AND DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 15) THIRTY-DAY OBJECTION DEADLINE

Findings and Recommendations Following Screening of Second Amended Complaint

I. Screening Requirement and Standard

Plaintiff Patrick F. Demery, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on May 17, 2010. On May 17, 2011, the Court issued its first screening order and dismissed Plaintiff's amended complaint, with leave to amend, for failure to state any claims.*fn1 Pending before the Court is Plaintiff's second amended complaint, filed on June 8, 2011.

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 "[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, 127 S.Ct. 1955, 1964-65 (2007)). 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) (internal 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 Eighth Amendment Medical Care Claims

A. Allegations

Plaintiff, who is incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran, brings this action against Defendant Anthony Enenmoh, Chief Medical Officer, for violation of the Eighth Amendment of the United States Constitution and California tort law.

Plaintiff alleges that on March 27, 2008, he had orthoscopic surgery on his left knee, following which he had some complications. Plaintiff saw the surgeon for follow-up appointments on June 21, 2008, August 13, 2008, October 22, 2008, November 17, 2008, and January 5, 2009. Each visit, Plaintiff complained of ongoing, extreme pain.

Plaintiff was also submitting health care services request forms at the prison, complaining of ongoing pain and seeking to be seen by the institution doctor.

On October 23, 2008, Defendant Enenmoh approved physical therapy for Plaintiff two times a week for four weeks. However, Plaintiff never received any physical therapy and when he filed an inmate appeal grieving the lack of physical therapy, Defendant Enenmoh reversed his previous order on December 16, 2008, leaving Plaintiff to suffer in pain.

On June 9, 2008, Plaintiff was taken to an outside hospital for abdominal pain and vomiting. Plaintiff was examined and treated, and the doctor prescribed morphine and Protonix. Defendant Enenmoh discontinued ...


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