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Roberto Herrera v. O. Beregovskays

December 21, 2012

ROBERTO HERRERA,
PLAINTIFF,
v.
O. BEREGOVSKAYS, 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 DAYS FIRST SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Roberto Herrera is a state prisoner proceeding pro se in this civil rights action filed on November 26, 2012 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff has consented to Magistrate Judge jurisdiction. (Consent to Magistrate, ECF No. 4.) Plaintiff's 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*fn1

Plaintiff claims Defendants, medical staff at Corcoran State Prison ("CSP"), have denied him adequate treatment of chronic pain from multiple healed fractures in violation of his rights under the Eighth Amendment. Specifically, he makes the following allegations.

Plaintiff suffers from multiple healed bone fractures in his left leg and right ankle, repaired with internal fixation, and he has related long term chronic pain and trouble sleeping. (Compl. at 4 § IV.)

California Department of Corrections and Rehabilitation ("CDCR") staff have denied adequate pain medication based upon "x-rays and mere appearances." (Id.)

On July 27, 2012, Defendant Dr. Karan denied Plaintiff's request for an MRI, citing the metal fixation devices in Plaintiff's body, and refused Plaintiff's request for referral to a neurologist for diagnosis and treatment of his chronic pain. (Id.)

On September 11, 2012, Dr. Nguyen "indicated nothing bad shows on x-rays and [Plaintiff] seems to be in good condition", and denied his request for referral to a neurologist. (Id. at 2)

On September 20, 2012, Dr. McCabe denied Plaintiff referral to a neurologist. (Id.)

On October 2, 2012, Nurse Vasaves denied Plaintiff referral to a neurologist. (Id.) On November 4, 2012, Dr. Beregovskays denied Plaintiff referral to a neurologist. (Id.)

On November 5, 2012, CSP Health Care Chief Executive Officer Macias denied Plaintiff referral to a neurologist. (Id. at 3.)

Plaintiff names as Defendants in this action (1) Karana, CSP Physician, (2) Nguyen, CSP Physician, (3) Beregovskays, CSP Physician, (4) McCabe, CSP Physician, (5) Macias, CSP Health Care Chief Executive Officer, and (6) Vasaves, CSP Nurse. (Id. at 4 § III.)

Plaintiff seeks (1) an injunction directing Defendant Macias to refer him to a neurologist for diagnosis and treatment of his chronic pain, (2) monetary compensation, and (3) appointment of counsel to assist in this matter. (Id. at 5 § V.)

IV. ANALYSIS

A. Pleading Requirements ...


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