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Gilbert Severa v. J. Akanno

July 30, 2012

GILBERT SEVERA,
PLAINTIFF,
v.
J. AKANNO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (ECF Nos. 4, 14) RESPONSE DUE WITHIN THIRTY DAYS

I. Background

Plaintiff Gilbert Severa ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On August 8, 2011, Plaintiff filed his complaint in the Northern District of California. ECF No. 4. On October 11, 2011, the action was transferred to this Court. On June 13, 2012, in order to better screen Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, the Court ordered Plaintiff to provide a more definite statement regarding his claims in this action. On June 29, 2012, Plaintiff filed his response to the order. ECF No. 14.

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 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, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Complaint and More Definite Statement

Plaintiff is incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants J. Akanno and Chen, medical doctors.

Plaintiff alleges the following. On August 14, 2010, Plaintiff was seen by Defendant Chen for two minutes. Pl.'s Compl. 2. Without x-rays, evaluation, or surgery, Defendant Chen informed Plaintiff that he was going to take Plaintiff off all his pain medication which he received because of a pre-existing injury. Id.

Plaintiff has severe chronic back pain. Pl.'s Statement 1. Plaintiff had been in a vehicle accident in 1976. Id. at 2. Plaintiff had slipped and fallen while working at Salinas Valley State Prison in 2003. Id. Plaintiff is currently diagnosed with chronic lower back pain. Id.

Plaintiff complained to Defendant Akanno on August 31, 2010 that Defendant Chen wanted to remove Plaintiff from his medication. Pl.'s Compl. 2. Defendant Akanno refused to place Plaintiff on proper medication and did not provide evaluation, x-rays, or surgery. Id.

Defendant Akanno had refused to provide for surgery because he decided that the surgery would worsen Plaintiff's condition.

Plaintiff requests that he be placed back on proper medication which worked for Plaintiff's pain, or to have back surgery in the alternative. Plaintiff also requests compensatory damages.

III. Analysis

The Court construes Plaintiff's claim as one for violation of the Eighth Amendment. The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently ...


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