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Michael Whitfield v. Ellen Greenman

August 10, 2012

MICHAEL WHITFIELD,
PLAINTIFF,
v.
ELLEN GREENMAN, M.D., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

SECOND SCREENING ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 14)

ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G)

Second Screening Order

I. Screening Requirement and Standard

Plaintiff Michael Whitfield, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 8, 2011. On September 30, 2011, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim under section 1983. Plaintiff filed an amended complaint on October 19, 2011.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity.*fn1 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

II. Discussion

A. Allegations

Plaintiff brings this suit against Defendants G. Salcedo, a registered nurse, and John Does 1 through 4 for violating his rights under the Eighth Amendment of the United States Constitution while he was incarcerated at Avenal State Prison (ASP). Plaintiff's claim arises from the approximately three-month period in which he received no medical attention at ASP. At the time, Plaintiff was recovering from hernia surgery, which was performed prior to his transfer to ASP.

In his original complaint, Plaintiff alleged as follows: Following his transfer to Avenal State Prison, Plaintiff was screened in Receiving and Release on November 2, 2009, by Ms. Salcedo, a registered nurse. Plaintiff informed Ms. Salcedo that he was in pain due to complications from hernia surgery. Ms. Salcedo documented the information and completed a form requesting that Plaintiff be seen by a doctor within fourteen days.

Plaintiff was not seen and on November 14, 2009, he requested medical attention via the submission of a health care services request form. Plaintiff submitted subsequent requests on December 28, 2009, January 30, 2010, and February 2, 2010. Plaintiff was finally seen by a doctor on February 17, 2010, at which time he complained about severe pain and difficulty walking and climbing, and he requested a lower bed chrono.

Plaintiff alleges that Defendants Greenman, McElroy, and Boparai are liable for the violation of his rights arising from the failure to provide him with any medical care between November 17, 2009, and February 16, 2010, because they knew or should have known of ...


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