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Tracye Benard Washington v. K. Harrington

August 29, 2012

TRACYE BENARD WASHINGTON,
PLAINTIFF,
v.
K. HARRINGTON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 14) CLERK SHALL CLOSE THE CASE SCREENING ORDER

I. PROCEDURAL HISTORY

On May 20, 2011, Plaintiff Tracye Benard Washington, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.)

On May 25, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 13.) Plaintiff's First Amended Complaint (ECF No. 14) is now before the Court for screening.

II. SCREENING REQUIREMENT

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

The First Amended Complaint names R. Griutron, Registered Nurse (RN), Kern Valley State Prison (KVSP) and G. Moonga, RN, KVSP as the Defendants in this action.

Plaintiff alleges the following:

Upon entering the custody of the California Department of Corrections and Rehabilitation (CDCR), Plaintiff was given an initial medical examination, diagnosed with asthma, and enrolled in the CDCR's Chronic Care Program (CCP). Prisoners in the CCP are scheduled for regular appointments with doctors to monitor chronic illness and adjust medication. Plaintiff was enrolled in the program at KVSP. (Compl. at 4.)

On May 26, 2009, Plaintiff filed a health care request for a flu shot because of breathing difficulties and persistent cough. (Id. at 4, 5.) Two days later he received a pass for the medical clinic and was seen by RN Moonga. Plaintiff described his symptoms and explained that he believed he may have contracted Swine Flu which was exacerbating his asthma. The prison had previously notified prisoners of a Swine Flu outbreak at KVSP and instructed inmates to contact medical staff upon experiencing certain symptoms. Plaintiff requested a flu shot. (Id. at 5.) "Although diagnosing [P]laintiff's medical illnesses is not within his scope, RN Moonga stated that he did not believe [Plaintiff] had the flu." (Id, at 6.) Moonga issued Plaintiff cough drops and Mucinex and told Plaintiff to report to medical staff if his symptoms persisted.

On June 15, 2009, Plaintiff filed a request that his asthma medication be strengthened because he was experiencing shortness of breath and was coughing day and night. Plaintiff received a pass for the clinic and was seen by RN Griutron on June 17, 2009. (Id.) Plaintiff explained his symptoms. Griutron measured Plaintiff's vital signs and attempted to give Plaintiff cough drops and Mucinex; Plaintiff explained that Moonga had given Plaintiff the same medication to no effect. Griutron replied that Plaintiff would be placed in line to see a doctor, that the wait would be approximately two weeks, and that Plaintiff was to return to the clinic if his symptoms persisted or worsened. (Id. at 7.)

Plaintiff returned to the medical clinic on Saturday, June 20, 2009, complaining of nausea and shortness of breath. Clinic staff instructed Plaintiff to fill out a health care request to be reviewed Monday. On June 22, 2009, Griutron signed and ...


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