Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hurvis Franklin v. California Department of Corrections and Rehabilitation

October 23, 2012

HURVIS FRANKLIN,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

FIRST SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Hurvis Franklin is a state prisoner proceeding pro se in this 42 U.S.C. § 1983 civil rights action filed on September 21, 2012 pursuant to 42 U.S.C. § 1983. He has declined Magistrate Judge jurisdiction. (ECF No. 5.) The Complaint 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 COMPLAINT

Plaintiff complains Defendants have been deliberately indifferent to and medically negligent regarding his serious medical needs in violation of the Eighth Amendment. He has diagnosed kidney dysfunction (Compl. at 1, 4) and a history of end stage renal disease (Id. at 21) for which he receives treatment including hemodialysis, lab tests, medications, nourishments and supplements. (Id. at 22-23.) He claims he needs a kidney biopsy and other unspecified tests which have not been performed. (Id. at 4, 22.) He was placed on pain management medication that was a psycho tropic drug, without his knowledge. (Id. at 4.) He has not received proper medical attention. (Id.)He has not been given a proper medical examination. (Id.) No renal specialist physician has examined him. (Id.)He has received improperly performed surgeries. (Id.) He has been permanently scarred and left in chronic pain. (Id.)

His health care appeal was denied on grounds he is receiving appropriate health care and prisoners may not demand a particular treatment. (Id. at 13, 22-23.)

He names as Defendants (1) Dr. Magdy,*fn1 Physician at Davita Dialysis Center, (2) Dr. Metts, California Substance Abuse and Treatment Facility ("CSATF") staff physician, (3) Dr. Ding, CSATF staff physician, (4) Meritt, CSATF staff nurse.*fn2 (Id. at 3-4.) Plaintiff seeks injunctive relief ordering that he receive proper medical care including a kidney biopsy, examination by a renal specialist and by a back specialist (for possible musculature and osteo problems), and dermatologist (for on-going boils, sores, and other dermatological disorders); and a medication comparison to ensure appropriate medications. (Id. at 4.)

IV. ANALYSIS

A. Pleading Requirements Generally

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 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, 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.'" Id. 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.

B. Personal Participation

To state a claim under ยง 1983, Plaintiff must demonstrate that each individually named defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.2002). The Supreme Court has emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 556 U.S. at 677. Plaintiff must demonstrate that each ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.