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Jason Gilmore v. Kings County Jail

April 21, 2012

JASON GILMORE,
PLAINTIFF,
v.
KINGS COUNTY JAIL, ET AL., DEFENDANTS.



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

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

SCREENING ORDER

I. PROCEDURAL HISTORY

On August 23, 2010, Plaintiff Jason Gilmore, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.)

Plaintiff's Complaint (ECF No. 1) and First Amended Complaint (ECF No. 10) were screened and dismissed, with leave to amend, on December 2, 2011 and December 30, 2011, respectively, for failure to state a cognizable claim. (ECF Nos. 9, 11.) Plaintiff's Second Amended Complaint (ECF No. 12) 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 SECOND AMENDED COMPLAINT

Plaintiff identifies the following Defendants in this action: (1) Kings County; (2) Dave Robinson, Kings County Sheriff (Sheriff); (3) Chris Jordan, former Sheriff; (4) Correctional Corporal Narciss, Deputy Sheriff; (4) unknown Deputy Sheriffs; and (5) unknown Sheriff's Department Corrections medical staff.

Plaintiff alleges the following:

On November 1, 2009, Plaintiff was committed to the custody of Defendant Jordan. Plaintiff was under the supervision of Defendant Narciss and an unspecified number of John Doe Deputy Sheriffs. (Compl. at 2.) On November 15, 2009, Plaintiff followed King County procedure and approached Defendant Narciss and the Doe Deputies to request medical care. Plaintiff complained of "excruciating oral pain" and told Narciss and the Deputies that he believed he had an abscessed tooth that required immediate medical attention. (Id. at 2, 3.) Narciss and his fellow Deputies referred Plaintiff to the medical staff. (Id. at 3.)

An unspecified number of John Doe healthcare personnel examined Plaintiff according to King County procedure and "advised [Plaintiff] that there was nothing they could do for him . . . ." (Id.) The Deputies returned Plaintiff to his cell. Each day for the next four days Plaintiff confronted Defendants Narciss, the Doe Deputies, and the Doe medical personnel and complained of "excruciating pain" that was worsening daily and of experiencing symptoms consistent with an abscess. The result was the same each day, Narciss and the Deputies referred Plaintiff to the Doe medical staff, who then examined Plaintiff and sent him back to his cell without a referral to a physician, dental surgeon, or other person with more expertise. (Id.) After being returned to his cell on the fifth day, Plaintiff was examined by a nurse who determined that Plaintiff needed to be sent to a local hospital for further examination. (Id. at 3, 4.)

Narciss and the Doe Deputies transported Plaintiff to a local emergency room. The emergency room physician referred Plaintiff to a larger regional hospital with the means to treat Plaintiff's abscess. Plaintiff was admitted to the regional hospital for twenty-one days. He underwent oral surgery to drain the abscess and antibiotic therapy to treat an infection in the abscess. (Id. at 4.)

The Second Amended Complaint claims that Defendants knowingly delayed treatment for Plaintiff's abscess and that the delay caused Plaintiff to suffer and undergo invasive medical treatment that would have otherwise been unnecessary. Plaintiff asserts that the Defendants violated his Eighth Amendment rights.

IV. ...


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