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Kenneth Schultz v. State of California Department of Corrections and Rehabilitation

April 21, 2012

KENNETH SCHULTZ,
PLAINTIFF,
v.
STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING PLAINTIFF'S ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 9) CLERK TO CLOSE CASE DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(g) SECOND SCREENING ORDER

I. PROCEDURAL HISTORY

Kenneth Schultz (Plaintiff), a state prisoner in Corcoran State Prison (CSP) where the events in issue occurred, is proceeding pro se and in forma pauperis in this civil rights action filed June 15, 2011 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.)

The Court screened and dismissed Plaintiff's Complaint, but allowed leave to amend. (Order Dismiss Compl., ECF No. 8.) Plaintiff filed a First Amended Complaint (First Am. Compl., ECF No. 9) which is now before the Court for screening.

Plaintiff has consented to Magistrate Judge jurisdiction. (Consent, ECF No. 5.)

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

Plaintiff re-asserts claims for inadequate medical care under the Eighth Amendment and for violation of his due process rights under the Fourteenth Amendment.*fn1 He alleges:

In January 2009, Plaintiff began to experience progressively worsening, widespread pain which interfered with movement and sleep. (First Am. Compl. at 4.) He was given blood tests which came back normal. (Id.) He continued to visit the prison medical clinic with complaints of pain. (Id.)

He saw Defendant Kim, a doctor at the prison clinic, in July 2009 for a skin lesion and self-diagnosed "chronic sepsis" (Id. at 9, 14-16), told him of the extreme pain and requested medication and further medical testing. (Id. at 4.) Dr. Kim refused, saying he was tired of inmates self-diagnosing . He told Plaintiff to learn to live with the pain. (Id.)

Plaintiff saw Defendant Kim again in September 2009 on a follow-up for skin lesion surgery and again complained of widespread pain and requested medication. (Id. at 5.) Dr. Kim told him that visit was not for the purpose of making complaints and that he should "put in a sick call slip." (Id.)

He grieved Defendant Kim's "deliberate indifference" through the prison appeal process and requested to be ...


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