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Nicolas Moran v. K. Dutra

September 21, 2012

NICOLAS MORAN,
PLAINTIFF,
v.
K. DUTRA, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON EIGHTH AMENDMENT CLAIMS AGAINST DEFENDANTS DUTRA, AUTEN, RYAN, AND D E D E E ; A N D R E C O M M E N D I N G REMAINING CLAIMS AND PARTIES BE DISMISSED (ECF No. 11) THIRTY-DAY OBJECTION DEADLINE

Plaintiff Nicolas Moran ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff initiated this action on June 7, 2011. (ECF No. 1.) The Court previously screened Plaintiff's initial Complaint and dismissed it leave to amend for failure to state a claim. (ECF No. 10.) Plaintiff has filed a First Amended Complaint. (Am. Compl., ECF No. 11.) No other parties have appeared in this action. Plaintiff's First Amended Complaint is now before the Court for screening.

I. 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 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, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

II. SUMMARY OF PLAINTIFF'S COMPLAINT

Plaintiff is currently housed at Pleasant Valley State Prison ("PVSP"), where the events at issue in his First Amended Complaint occurred. Plaintiff sues the following individuals for inadequate medical care and excessive force under the Eighth Amendment:

1) K. Dutra, medical correctional officer at PVSP, 2) Auten, correctional officer at PVSP,

3) Ryan, registered nurse at PVSP, 4) Dedee, registered nurse at PVSP, and 5) John Does, 1-20.

Plaintiff alleges as follows:

On July 7, 2009, Plaintiff was summoned to the medical clinic at PVSP after he reported he was in pain. (Am. Compl. at 4.) Defendant Dedee interviewed Plaintiff and called him a liar. (Id.) She told Plaintiff she would make an appointment for him to see the doctor in thirty days and failed to provide him with any immediate treatment. (Id.) Defendant Ryan entered the room and indicated she knew about Plaintiff's previous medical requests but failed to process them. (Id. at 5.) Plaintiff asked for a wheelchair but instead Defendants Dutra and Auten were asked to escort Plaintiff out of the clinic. (Id.) Plaintiff tried walk out of the clinic but he could not do so. (Id.) Defendants Dutra and Auten tackled Plaintiff, threw him to the floor, cuffed him, placed a knee on Plaintiff's back, and cut his left wrist. (Id. at 5-6.) Defendants Dutra and Auden, with additional staff members, dragged Plaintiff out of the office. (Id. at 6.)

From the clinic Plaintiff was taken to a holding cell. (Am. Compl. at 6.) Plaintiff asked Defendants Dutra and Auten, as well as other staff members, to loosen the handcuffs but his requests were ignored. (Id.) Eventually Defendants Dutra and Auten dragged Plaintiff to the program office. (Id.) While doing this they insulted him and told him to walk. (Id.) Plaintiff was found guilty of a rules violation report for disruptive behavior. (Id.)

Plaintiff asks for medical treatment, reinstatement of his chronos, reinstatement of his prior medication, a meeting with a member of the American Board of Neurological Surgery, $150,000 in ...


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