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Solomon Avery v. Brenda M. Cash

January 16, 2013

SOLOMON AVERY, PLAINTIFF,
v.
BRENDA M. CASH, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, on December 11, 2012 ("Complaint").

Congress has mandated that courts perform an initial screening of civil rights actions brought by prisoners with respect to prison conditions and/or that seek redress from a governmental entity or officer or employee of a governmental entity. The Court "shall" dismiss a prisoner civil rights action if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit.

28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint, unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

In screening a pro se civil rights complaint, the Court must construe its allegations liberally and must afford the plaintiff the benefit of any doubt. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). The standard applicable on screening is the standard for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Id. The complaint need not contain detailed factual allegations, but must contain sufficient factual matter to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). If a complaint is dismissed, a pro se litigant must be given leave to amend unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi, 839 F.2d 621, 623 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

ALLEGATIONS OF THE COMPLAINT

Plaintiff is incarcerated at the California Institution for Men ("CIM"). (Complaint at 2.) Defendants are the following CIM officials:

Warden Brenda Cash; Dr. Lucius Hill; Dr. Yee; Dr. Le; and Appeals Coordinator Gill. (Id. at 3-4.)

Plaintiff's claims arise out of the medical treatment of his foot. According to his Complaint allegations and the attached exhibits, in 2009, plaintiff had foot surgery to remove pellets remaining in his left foot after a 1992 gunshot. Plaintiff then experienced fungus build-up in his toes. Dr. Hill took plaintiff to his outside clinic and performed a procedure to scrape off the fungus. The procedure resulted in an infection, which plaintiff contends was gangrene, and on July 10, 2010, Dr. Hill had to amputate some of plaintiff's toes. Plaintiff ascribes the loss of his toes to Dr. Hill's failure to follow proper sterilization procedures. (Complaint at 5a.)

Plaintiff further contends that between September or October 2009, and July or August 2010, defendants failed to provide him with proper medical care and were indifferent to his pain. (Complaint at 5, 5a-5d.) He also contends that inmates of other races did not have to wait as long as he did for medical care, even though his need for it was greater. (Id. at 5b.) He complains that Warden Cash failed to respond to his requests for medical care and that appeals coordinator Gill "screened out" or failed to respond to his grievances and did not return his family's calls. (Id. at 5, 5d.) Plaintiff asserts: Eighth Amendment claims against Drs. Hill, Yee, and Le; due process claims against all defendants; equal protection claims against defendants Cash, Yee, and Le; and a claim against Dr. Yee for failure to provide him with an accommodation under the Americans with Disabilities Act ("ADA"). (Id. at 5b.)

Plaintiff seeks damages and "life-time medical coverage." (Complaint at 6.)

DISCUSSION

I. PLAINTIFF FAILS TO STATE AN EIGHTH AMENDMENT CLAIM.

Plaintiff asserts Eighth Amendment claims against defendants ...


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