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Sebren A. Pierce v. Lopez

April 23, 2012

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



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

ORDER RECOMMENDING DISMISSAL WITH PREJUDICE (ECF No. 18)

PLAINTIFF'S OBJECTIONS, IF ANY, DUE Defendants. IN 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). On March 29, 2012, Plaintiff's First Amended Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 17.) Plaintiff's Second Amended Complaint (ECF No. 18) 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

The Second 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.

Plaintiff alleges the following:

On January 13, 2010, yard medical staff prescribed Plaintiff the antibiotic Salfamethoxazole for an ear ache. (Compl. at 3, 4.) "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 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, fatique [sic], anxi[e]ty, fever, chills, drowsiness, nausea, and abdominal pain." (Id.) Defendant Kim then prescribed a new antibiotic, Cipro, "without understanding the side effects of that particular antibiotic . . . ." (Id. at 5.)

On January 18, 2010, Plaintiff's condition worsened: his temperature rose to 103.2 degrees, a rash developed throughout his body, and his original symptoms persisted. (Id. at 4.) Plaintiff ran a temperature above one hundred degrees for ten days. (Id. at 5.) Kim failed to warn Plaintiff of Cipro's potential side effects and failed to recognize that Cipro was not alleviating Plaintiff's pain, but exacerbating it. Plaintiff repeatedly informed Kim of his symptoms. (Id. at 4.) Before his hospitalization, Plaintiff had observed Defendant Kim use a computer to retrieve information from the pharmacy regarding certain drugs and their respective side effects. "The information was readily and reasonably available for Defendant." (Id. at 6.)

Defendant Kim and the medical staff did not recognize the adverse impact of the antibiotics because the medication was packaged without warning labels. Warden Lopez and Chief Medical Officer Clark have instituted a policy or custom whereby medication delivered to the prison is taken out of the manufacturer's packaging and placed in prison packaging. As a result, manufacturer information regarding side effects is not provided with the medication in prison packaging. (Id. at 4, 5.)

As a result of the Defendant's conduct, "Plaintiff still suffers from the following: (A) constant, severe reoccurring headaches; (B) loss of concentration; (C) loss of memory; (D) virtigo [sic]; (E) ...


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