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Rafael Pulido v. F. Igbinosa

July 30, 2012

RAFAEL PULIDO, PLAINTIFF,
v.
F. IGBINOSA, 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 No. 1) RESPONSE DUE WITHIN THIRTY DAYS

I. Background

Plaintiff Rafael Pulido ("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 October 14, 2011, Plaintiff filed his complaint. ECF No. 1.

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

Plaintiff is incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names the following individuals as Defendants: F. Igbinosa, health care manager and medical doctor at PVSP; Barry J. Green and Randolph Wilson, III, PA-C at PVSP; and T. Vaysman, R.N. at PVSP.

Plaintiff alleges the following. Plaintiff made a medical request to Defendant Barry Green. Plaintiff complained of having bullet fragments in his left hand that were causing Plaintiff a lot of pain and discomfort. Based on Plaintiff's submitted exhibits, this wound occurred in 2005. Pl.'s Compl., pp. 14-15. A doctor had recommended surgery at some point to remove the bullet pieces, but instead of doing something, Defendant Green cut off Plaintiff's pain medication for Tylenol #3 and Neurontin, finding nothing wrong with Plaintiff's arms.

Based on Plaintiff's exhibits, Plaintiff had a pre-existing injury which occurred in February 22, 2008 in Delano, California, when Plaintiff fractured his right hand, but the wound had healed. Pl.'s Compl., pp. 14-15. Plaintiff fell down at some point, hurting his right arm. Plaintiff reported this to Defendant Vaysman, who checked and found nothing wrong with it. She determined that Plaintiff was receiving the right pain medication. Based on Plaintiff's submitted exhibits, Plaintiff received naproxen for his pain. Plaintiff saw Defendant Wilson and informed him of his issues with his right forearm and left hand. Defendant Wilson provided Plaintiff Tylenol #3 for ten days, also concluding that nothing was wrong and Plaintiff needed rest only. Defendant Igbinosa is liable because he is responsible for medical treatment at PVSP.

Plaintiff contends that Defendants violated Plaintiff's right to be free from cruel and unusual punishment in violation of Eighth Amendment. Plaintiff requests monetary damages and that CDCR medical staff be properly trained and professionally qualified.

III. Analysis

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 serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know[] of and disregard[] an excessive risk to inmate health or safety . . . ." Id. at 837.

"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

Plaintiff fails to state a claim against any Defendants. Plaintiff complains of chronic pain in his left hand right forearm, which is sufficient to satisfy the objective prong. Farmer, 511 U.S. at 834. As to Defendant Green, Plaintiff complains that Defendant Green removed Plaintiff from his Tylenol # 3 and Neurontin medication, finding that there was nothing wrong with Plaintiff's arms. Plaintiff submits an inmate grievance as an exhibit in support, in which Plaintiff complains that Defendant Green had removed Plaintiff from his pain medication without examining Plaintiff or his medical history. Based on that allegation, Plaintiff fails to allege facts which indicate that ...


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