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Jimmy Gonzales v. Harold Tate

December 28, 2012

JIMMY GONZALES,
PLAINTIFF,
v.
HAROLD TATE,
DEFENDANT.



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

ORDER DISMISSING PLAINTIFFS'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 16) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Plaintiff Jimmy Gonzales ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. No other parties have appeared.

Plaintiff initiated this action on December 2, 2011. (Compl., ECF No. 1.) Prior to the Court screening Plaintiff's original Complaint, Plaintiff filed a First Amended Complaint (ECF No. 6) and a Second Amended Complaint (Am. Compl., ECF No. 16). Plaintiff's Second Amended Complaint is now before the Court for screening.

I. 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 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 (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.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 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. Iqbal, 556 U.S. at 678.

II. PLAINTIFF'S CLAIMS

Plaintiff is currently incarcerated at California Correctional Institution ("CCI"), where the alleged underlying events occurred. Plaintiff alleges that the following individuals violated his right to adequate medical care under the Eighth Amendment and his rights under the Americans with Disabilities Act: 1) Doctor H. Tate, doctor at CCI and 2) Doctor

A. Joaquin, chief medical doctor at CCI.

His allegations are as follows: Plaintiff has chronic severe back pain, a degenerative disc disease, and nerve root

problems. (Am. Compl. at 3.) Plaintiff was previously prescribed a number of pain medications and placed in physical therapy (Id. at 4-8.) Plaintiff also saw various specialists for his back. (Id. at 6-7.)

Plaintiff met with Defendant Tate on the day he was transferred to CCI. (Am. Compl. at 8.) Defendant Tate told Plaintiff he was stopping Plaintiff's pain medication because there was nothing wrong with Plaintiff. (Id.) Defendant Tate said he would provide Plaintiff with some drugs to help him overcome withdrawal. (Id.) Defendant Tate also revoked Plaintiff's Disability Placement Program Verification. (Id. at 9.) Defendant Tate's orders were reviewed and authorized by Defendant Joaquin. (Id.)

As of October 12, 2011, Plaintiff has not received any treatment for his back pain or injury. (Am. Compl. at 10.) Plaintiff continues to be in pain. (Id.) Plaintiff believes his injuries are getting worse. (Id.)

Plaintiff asks for a preliminary injunction directing Defendants to reinstate Plaintiff's Disability ...


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