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Fermin Layos v. E. Conanan

November 30, 2012

FERMIN LAYOS,
PLAINTIFF,
v.
E. CONANAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 1)

Screening Order

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation at Avenal State Prison, brings this civil rights action against defendant correctional officials employed by the Department of Corrections and Rehabilitation at Avenal. Plaintiff names the following individuals: E. Conanan; Hitchman; Raj Gopal, M.D.; Dr. Greenleaf; A. Ross, R.N.; Nurse Practitioner I. Mathos. Plaintiff claims that he was subjected to inadequate medical care such that it violated the Eighth Amendment's prohibition on cruel and unusual punishment.

On May 21, 2009, Plaintiff was seen by Defendant Ross. Plaintiff complained of chest pains, coughing, blood in his sputum and dizziness. Ross advised Plaintiff to put a hot water bottle on his chest. Ross failed to address the coughing, dizziness, or blood in Plaintiff's sputum.

On June 15, 2009, Plaintiff was seen by John Doe 3. On September 1, 2010, Plaintiff was seen by Defendant Mathos, "whom states that she felt that the plaintiff had in fact contracted valley fever."

During a medical examination on September 21, 2009, Plaintiff asked Dr. Conanan if he could be medically transferred due to "my high risk to contracting valley fever being Filipino and having severe allergies." Dr. Conanan declined to refer Plaintiff for a medical transfer.

On December 11, 2009, Plaintiff was sent to an outside physician. Plaintiff was seen by Raj Gopal, M.D. Dr. Gopal "did in fact determine that the plaintiff had a body fighting infection according to the blood tests taken on 10/21/2009." Plaintiff alleges that the infection was consistent with valley fever.

On December 28, 2009, Plaintiff was seen by John Doe 1 with a complaint of chest pains. John Doe 1 "ignored the pain I was enduring and only requested that the plaintiff continue taking the medicine which were prescribed."

On January 16, 2010, Plaintiff was seen by Jane Doe 2, a registered nurse. Plaintiff alleges that he "endured this pain for months ...


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