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Donnie Ray O'neal, Jr v. California Department of Corrections

September 25, 2012

DONNIE RAY O'NEAL, JR.,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



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

ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM ECF No. 26) (ECF No. 26) CLERK SHALL CLOSE THE CASE SCREENING ORDER

I. PROCEDURAL HISTORY

On September 2, 2009, Plaintiff Donnie Ray O'Neal, Jr., 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.)

Plaintiff's Complaint (ECF No. 1) and First Amended Complaint (ECF No. 21) were screened and dismissed, with leave to amend, on May 24, 2012 and August 1, 2012, respectively, for failure to state a cognizable claim. (ECF Nos. 17, 23.) Plaintiff's Second Amended Complaint (ECF No. 26) 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 SECOND AMENDED COMPLAINT

The Second Amended Complaint names the following individuals as Defendants:

(1) Timothy Byers, Physicians Assistant, California Substance Abuse Treatment Facility and State Prison at Corcoran (Corcoran); (2) A. Enenmoh, Chief Medical Officer (CMO), Corcoran; (3) K. Allison, Warden, Corcoran; and (4) Director, California Department of Corrections and Rehabilitation (CDCR).

Plaintiff alleges the following:

On February 25, 2009, Defendant Byers altered Plaintiff's medical status from "'deaf', to, 'hearing impaired, correctable to a functioning level w[ith] hearing aids.'" (Compl. at 3.) Correctional Officers at Corcoran respond to emergencies with various expectations of disabled and non-disabled prisoners. Plaintiff's hearing impairment is not correctable; Defendant Byers falsely changed Plaintiff's designation. Byers acted with deliberate indifference to the risk that Plaintiff is not capable of acting as an inmate with functional hearing. Plaintiff challenged Byers' decision by filling an inmate appeal with the Warden's office. Allison was deliberately indifferent to the risk to Plaintiff's safety as she knows Corcoran policy and the danger a disabled inmate could face without being identified as disabled. (Id.)

Defendant Enenmoh was also responsible for reviewing Plaintiff's appeal. Enenmoh allowed Plaintiff's appeal to sit on his desk awaiting final review "for a long period of time," in deliberate indifference to the risk of harm to Plaintiff. (Id.)

Plaintiff has at least one incurable medical condition that requires pain management, antibiotics, and a special diet. (Id. at 5.) On November 30, 2009, Enenmoh ordered Plaintiff's medical treatment discontinued prior to its prescribed expiration. By this time Plaintiff had filed the instant civil action and Plaintiff's inmate appeal was still "sitting on [Enenmoh's] desk, awaiting his final review . . . ." (Id. at 4.) Plaintiff's medication was discontinued in retaliation for Plaintiff having filed this civil action complaining, in part, of Enenmoh's conduct. On February 9, 2010, Plaintiff filed a notice of his pending civil action against the Defendants with the legal affairs division at Corcoran. (Id.)

On August 12, 2012, Plaintiff awoke sweating, with chest pain, cramps, and shortness of breath. He was transported to the medical clinic where preliminary examinations found that Plaintiff's blood pressure and heart rate were abnormally high. An EKG discovered an irregular heart rhythm. The attending nurse related this information to a doctor, who put Plaintiff on the medical queue to see a physician later in the week. No treatment was immediately provided. The nurse told a guard that a patient with these symptoms outside of prison ...


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