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Manuel Quiroga v. Barry J. Green

August 23, 2012

MANUEL QUIROGA, PLAINTIFF,
v.
BARRY J. GREEN, ET AL., DEFENDANTS.



ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 1 THIRTY-DAY DEADLINE

Screening Order

I. Procedural History, Screening Requirement, and Standard

On June 15, 2011, Plaintiff Manuel Quiroga ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging Eighth Amendment deliberate indifference for failing to provide a second shoulder surgery and discontinuing his prescription for morphine. Compl. at 3-4, Doc. 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 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.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 676; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Allegations in Plaintiff's Complaint

In Plaintiff's complaint, he names physician assistants Barry J. Green and Mr. Wilson, who were employed at Pleasant Valley State Prison ("PVSP"). Plaintiff also names G. Carpenter and L. Zamora, Chief Executive Officers for Health Care Services, who were employed by the California Department of Corrections and Rehabilitation ("CDCR"). Compl. at 2, 4, Doc. 1.

On June 6, 2008, Plaintiff had surgery on his right shoulder by medical surgeon, David G. Smith, M.D. Id. at 3. On August 21, 2008, Plaintiff had severe pain and shoulder damage and Doctor John Diep prescribed 30 mg of morphine twice per day. Id.

On December 30, 2008, the operation proved to be unsuccessful. Id. Plaintiff's shoulder was severely swollen, painful, and his mobility was impaired from his shoulder to elbow. Id. Plaintiff was now experiencing chronic pain from his neck down to the lower back, on top of his shoulder damage. Id. Plaintiff was continued on morphine. Id. James Carter Thomas, M.D. performed an MRI, surgery was indicated necessary, and more morphine was prescribed for pain. Id. While waiting for surgery, Plaintiff was treated with morphine twice a day for pain. Id. at 4.

Plaintiff had a medical appointment to get his morphine renewed and inquire about his upcoming surgery. Id. The doctor was replaced by a physician assistant, Barry Green. Id. Mr. Green did not examine Plaintiff but told him, "I'm taking your morphine away, I do not care if you have cancer, broken bones, or any other disease, I am not going to renew your morphine or schedule you for surgery." Id. While going through severe morphine withdrawals, Plaintiff returned to the medical department and was seen by another physician assistant, Mr. Wilson, who told Plaintiff the same thing. Id. Mr. Wilson said he did not care what other doctors prescribed and that he would not prescribe morphine or any drug other than aspirin. Id.

On April 18, 2011, G. Carpenter and L. Zamora, Chief Executive Officers for Health Care Services, denied Plaintiff's appeal at the third level of review. Id. They found that Plaintiff had been examined by a licensed physician, who has the experience and license to determine the course of medical treatment. Id. These medical department chiefs are deliberately indifferent ...


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