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Michael A. Murray v. Merced County Jail Sheriff's Department

January 17, 2013

MICHAEL A. MURRAY,
PLAINTIFF,
v.
MERCED COUNTY JAIL SHERIFF'S DEPARTMENT, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS ECF No. 14

I. Background

Plaintiff Michael A. Murray ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on August 9, 2011. On April 25, 2012, Plaintiff filed his First Amended Complaint. ECF No. 12. On July 17, 2012, the Court screened Plaintiff's First Amended Complaint and dismissed it for failure to state a claim, with leave to amend. ECF No. 13. On August 16, 2012, Plaintiff filed his Second Amended Complaint. ECF No. 14.

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. Id. § 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." Id. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader 2 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 6 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 7 allegations are accepted as true, legal conclusions are not. Id. 8

II. Summary Of Second Amended Complaint 9

Plaintiff is incarcerated at John Latorraca Correctional Center in El Nido, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: Mark Pazin, head sheriff of the Merced County Sheriff's Department; Amanda Gibson, medical program manager of the California Forensic Medical Group for Merced County Jail; Dr. David, medical doctor; nurses Debbie and Dave, nurses; and Deputy Sheriff Saldana.

Plaintiff alleges the following. On July 13, 2011, Plaintiff's pain and psychotropic medication was revoked by Defendants Saldana, Debbie, and Dave. Plaintiff did not receive his medication until approximately three weeks later. Plaintiff suffered from chronic pain in his shoulder. Plaintiff was denied his medication as part of a disciplinary act.

Plaintiff was seen by Defendant Dave at some point prior, and Defendant Dave recommended that Plaintiff be seen by an orthopedic specialist regarding his shoulder. Defendant Nurse Dave referred Plaintiff to Defendant Dr. David. Defendant David, however, did not refer Plaintiff to see an orthopedic specialist. Plaintiff has not seen an orthopedic specialist for over twenty-one months since the referral.

Plaintiff filed several grievances on March 21, 2011, July 15, 2011, July 22, 2011, and July 24, 2011 regarding his issues with his medication and the lack of referral to see an orthopedic specialist. Defendant Gibson responded to Plaintiff's grievances by advising Plaintiff to submit a sick call slip if he believed that he was not receiving the care that he requested. Plaintiff also complains that he was charged three dollars co-pay for each medical visit, even though he believes that the visits were "follow-ups" and thus should be free of charge.

Plaintiff contends that Defendants have violated his Eighth Amendment rights. Plaintiff 2 requests as relief compensatory and punitive damages, injunctive relief in the form of providing 3 Plaintiff with his requested medical treatment and future treatment, and that all Defendant be 4 reprimanded. 5

III. Analysis

A. Eighth Amendment

The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not 8 mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation 9 omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ...


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