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Geraldine Darden v. Dr. Singh

September 14, 2012

GERALDINE DARDEN,
PLAINTIFF,
v.
DR. SINGH, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM SUBJECT TO 28 U.S.C. § 1915(g) (ECF No. 10)

I. PROCEDURAL HISTORY

FOURTEEN (14) DAY DEADLINE

Plaintiff Geraldine Darden, 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.) She has declined Magistrate Judge jurisdiction. (ECF No. 8.)

Plaintiff's Complaint was dismissed for failure to state a claim, but she was given leave to amend. (ECF No. 7.) She filed a First Amended Complaint on August 27, 2012. (ECF No. 10). It 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

Plaintiff is incarcerated at the Central California Women's Facility ("CCWF") in Chowchilla, California. (First Am. Compl. at 1.) In May of 2009, she was hospitalized at Fresno Community Hospital ("FCH") where Defendant Dr. Singh diagnosed multiple sclerosis ("MS") and recommended treatment with the drug Avonex. (Id. at 4-5.) Defendant Mendhi, a medical doctor on staff at CCWF, prescribed Avonex and Plaintiff began treatment with Avonex. (Id. at 5.) Plaintiff alleges she is predisposed to cancer and that she disclosed such to Defendants during pre-treatment consultation. (Id.) She contends Avonex is carcinogenic and increases one's risk of cancer. (Id.) Defendants did not warn her that Avonex increased the risk of cancer. (Id.) She later developed cancer which led to removal of her left breast. (Id. at 6.) She claims treatment with Avonex caused the cancer. (Id. at 4-5.) She claims Defendants negligently recommended and prescribed Avonex. (Id. at 6.) She claims Avonex is medically unacceptable as treatment for a person who has a predisposition to cancer. (Id.)

She names as Defendants (I) Singh, FCH medical doctor "delegated by CCWF to care for state prisoners", and (ii) Mendhi, CCWF medical doctor. (Id. at 3-4.)

She seeks monetary compensation. (Id. at 4, 6.)

IV. ANALYSIS

A. Pleading Requirements ...


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