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Mike Trieu v. C. N. Ho

July 2, 2012

MIKE TRIEU,
PLAINTIFF,
v.
C. N. HO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

SCREENING ORDER ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Doc. 1.)

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION (Doc. 7.)

ORDER DENYING APPOINTMENT OF COUNSEL THIRTY DAY DEADLINE TO FILE AMENDED COMPLAINT

I. RELEVANT PROCEDURAL HISTORY

Mike Trieu ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 22, 2011 (Doc. 1.) On October 7, 2011, Plaintiff consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c), and no other parties have appeared. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case, including final judgment, until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

Plaintiff's Complaint is now before the Court for screening. Plaintiff's motion for preliminary injunctive relief, filed on June 28, 2012, and request for appointment of counsel are also now before the Court. (Docs. 1, 7.)

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 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 is required to 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal 129 S.Ct. at 1949. While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF COMPLAINT

The events at issue in the Complaint allegedly occurred at Pleasant Valley State Prison ("PVSP") in Coalinga, California, while Plaintiff was incarcerated there. Plaintiff is presently incarcerated at the R. J. Donovan Correctional Facility ("RJD") in San Diego, California. In the Complaint, Plaintiff names as defendants Dr. C. N. Ho, Dr. J. Chokatos, Dr. Das, Dr. I. Ogbuehi, Dr. R. Singh, and Physician's Assistant J. Fortune. All of the defendants were employed at PVSP at the time the events at issue occurred. Plaintiff alleges as follows.

Plaintiff suffers from anemia and diabetes. Plaintiff alleges that as an anemic, he needs the medication Epogen to live, because Epogen produces red blood cells in his body, bringing Plaintiff oxygen and allowing him to live. Plaintiff was treated with the medication Aranesp for forty six months while housed at the Los Angeles County Jail, and was treated with Epogen for four months while housed at North Kern State Prison ("NKSP"). Plaintiff was transferred from NKSP to PVSP in April of 2011.

On April 18, 2011, defendant Dr. Ogbuehi refused to provide Plaintiff with treatment with Aranesp, despite Plaintiff's previous medical determinations, worsening condition, and pleas.

On April 27, 2011, Plaintiff had a medical evaluation at Twin Cities Hospital where it was determined that his 12.0 hemoglobin level was abnormal (normal range is 12.7-17.1) and he was diagnosed as anemic.

On May 17, 2011, defendant Fortune (Physician's Assistant) refused to provide Plaintiff with Epogen, despite Plaintiff's previous medical determinations, worsening condition, and pleas.

On June 6, 2011, defendant Dr. Chokatos refused to provide Plaintiff with Epogen, despite

Plaintiff's previous medical determinations, worsening ...


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