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Lewis Perry v. Dr. John Garcia

October 2, 2012

LEWIS PERRY,
PLAINTIFF,
v.
DR. JOHN GARCIA, 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, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 1) THIRTY-DAY DEADLINE

First Screening Order

I. Screening Requirement

Plaintiff Lewis Perry, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 21, 2012. 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 is currently incarcerated at Pleasant Valley State Prison, and he brings this action against Doctor John Garcia, Doctor Freeman, Chief Medical Executive Felix, Chief Executive Officer A. Lonigro, Attorney General Kamala Harris, and Warden R. H. Trimble for violating his rights under the Eighth Amendment of the United States Constitution.

Plaintiff's claims arise out of the ongoing issues he is having with boils that will not heal. Plaintiff alleges that he had four boil-like growths in his groin area. Plaintiff was seen by Defendant Garcia, a surgeon at San Joaquin Valley Hospital (SJVH). On March 30, 2010, Defendant Garcia made four incisions. The incisions were not stitched and the areas remained open and unhealed.

On May 19, 2010, Plaintiff was taken back to SJVH and Defendant Garcia again operated on Plaintiff. Defendant Garcia made deeper incisions because the sites had become infected. Defendant Garcia packed but did not stitch the sites and they subsequently opened up again.

On August 27, 2010, Plaintiff had a third surgery, performed by Defendant Freeman. Defendant Freeman cleaned out the wounds and applied dissolving stitches after Plaintiff asked about having stitches. Once again, however, the wounds opened back up.

Plaintiff alleges that the wounds are still open and leaking, and prison doctors have been unable to get him to the right doctors who can correct the problem. Plaintiff also alleges that Defendant Garcia became frustrated with prison officials because they kept returning Plaintiff to him when he had done all he ...


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