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Gilbert G. Ambalong v. F. Igbinosa

December 10, 2012

GILBERT G. AMBALONG, PLAINTIFF,
v.
F. IGBINOSA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING MOTION FOR SCREENING ORDER (ECF No. 3) ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (ECF No. 2, 11) RESPONSE DUE WITHIN THIRTY DAYS

I. Background

Plaintiff Gilbert G. Ambalong ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. On July 1, 2011, Plaintiff filed this action in Fresno County Superior Court. On April 25, 2012, Defendants D. B. Allen, F. Igbinosa, R. H. Trimble, and J. A. Yates ("Defendants") filed a notice of removal to this Court. ECF No. 2. On November 29, 2012, Defendants filed a complete copy of Plaintiff's complaint. ECF No. 11.*fn1

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 2 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2). 3

A complaint must contain "a short and plain statement of the claim showing that the pleader 4 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 8 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 9 allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Complaint

Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: acting warden R. H. Trimble, former warden J. A. Yates, chief medical officer F. Igbinosa, chief physician and surgeon Duenas, physician assistant B. J. Green, correctional captain D. Allen, general medical practitioner D. Jardini, physician assistant E. Brown, and Does 1-5, members of the Pain Management Committee. Plaintiff also names Doe Defendant, Director of Corrections.

Plaintiff alleges the following. Plaintiff suffered degenerative disc disease, which caused him pain. Pl.'s Compl. ¶ 14. Plaintiff contends all Defendants have been aware of Plaintiff's medical condition since he was transported to pain management specialist Langlois on May 19, 2008. Doctor Langlois had recommended a treatment procedure for Plaintiff. Pl.'s Compl. ¶ 15. On September 16, 2008, Plaintiff was admitted to Mercy Hospital in Bakersfield, where he was diagnosed with severe degenerative disc disease. Pl.'s Compl. ¶ 16.

Plaintiff contends that Defendants have repeatedly delayed medical tests and medical treatment for Plaintiff from June 2008 to the date the complaint was filed. Pl.'s Compl. ¶ 22. Plaintiff filed several appeals regarding his lack of treatment. Pl.'s Compl. ¶ 23. On June 5, 2009, Plaintiff was examined by doctor Rahimifar, who examined Plaintiff with his eyes only, and determined that Plaintiff was not an ideal candidate for lumbar surgery. Pl.'s Compl. ¶ 24. On August 6, 2010, Defendant Duenas found that Plaintiff should continue on his current daily morphine dosage. Pl.'s Compl. ¶ 25. 2

On June 3, 2010, Defendant Green discontinued Plaintiff's Lyrica pain medication finding 3 that Plaintiff had only simple disc degeneration. Pl.'s Compl. ¶ 26. Defendant Green accused 4 Plaintiff of being manipulative and whining. Pl.'s Compl. ¶ 26. 5

On October 28, 2010, Plaintiff appeared before the pain management committee, consisting 6 of Defendants Duenas, Green, Igbinosa, and Allen, and five other Doe Defendants. Pl.'s Compl. ¶ 7 27. Plaintiff explained his pain issues, how his pain can reach 9 on a scale of 1 through 10, and is at 8 6 or 7 on other days. Pl.'s Compl. ¶ 27. The committee discussed Plaintiff's case and basically 9 stated that all his problems are anxiety-related, ignoring the objective tests. Pl.'s Compl. ¶ 27.

On February 18, 2011, during an examination with Defendant Jardini, Plaintiff stated that he was experiencing severe stomach and leg, hip, and back pain. Pl.'s Compl. ¶ 28. Defendant Jardini interrupted Plaintiff, stating that he did not feel Plaintiff needed any pain medication and was going to discontinue all currently prescribed pain medication. Pl.'s Compl. ¶ 28. On August 12, 2010, Defendant Brown reduced Plaintiff's morphine medication from 30 mg SR three times a day, to 15 mg IR two times a day. Pl.'s Compl. ¶ 29. On March 24, 2011, Plaintiff made a request to Defendant Brown to have his pain medication increased due to severe pain in his legs, hip, and back. Pl.'s Compl. ¶ 30. This request was denied. Pl.'s Compl. ¶ 30. Plaintiff is on restricted duty status. Pl.'s Compl. ¶¶ 31-33.

Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages ...


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