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Ellis Hollis v. Serge v. Verne

August 27, 2012

ELLIS HOLLIS,
PLAINTIFF,
v.
SERGE V. VERNE, ET AL.,
DEFENDANTS.



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

FIRST SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND (Doc. 1)

THIRTY-DAY DEADLINE

First Screening Order

I. Screening Requirement and Standard

Plaintiff Ellis Hollis, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 18, 2011. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 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. Summary of Allegations

Plaintiff, who is currently incarcerated at California State Prison-Solano, brings this action for the violation of his rights under the Eighth Amendment of the United States Constitution while he was at Pleasant Valley State Prison (PVSP). Plaintiff names Serge V. Verne, DDS, MD; David Y. Park, DDS, MD; J. Chokatos, MD; J. A. Fortune, P. A.; and PVSP Chief Executive Officer A. Lonigro as defendants. Plaintiff seeks damages and injunctive relief. However, given that Plaintiff is no longer incarcerated at PVSP, his claim for injunctive relief is precluded and he is limited to seeking damages. Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012), Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).

Plaintiff alleges that on March 2, 2010, Defendant Verne performed oral surgery on his broken jaw at an outside facility.*fn1 On April 19, 2010, Defendant Verne operated a second time and put a metal plate in Plaintiff's jaw.

When Plaintiff returned to PVSP, Defendant Chokatos refused to perform the required examination of the metal plate, which was causing Plaintiff severe discomfort. As a result, Plaintiff filed an inmate appeal on May 2, 2010. Based on Defendant Fortune's assurance that Plaintiff would receive prompt, adequate medical treatment for his jaw, Plaintiff withdrew his appeal. However, Plaintiff was once again denied treatment and medication, leaving him in extreme pain.

On January 24, 2011, Plaintiff again underwent oral surgery, which was performed by Defendant Park at the same outside facility. Defendant Park removed the metal plate from Plaintiff's jaw because the jaw had become infected due to lack of medical care and there were loose screws. Defendant Park recommended that Plaintiff be prescribed Tramadol, but Defendant Chokatos refused to refill the prescription or treat Plaintiff, and he failed to review Plaintiff's medical ...


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