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Lewis Perry v. Dr. John Garcia

January 22, 2013

LEWIS PERRY,
PLAINTIFF,
v.
DR. JOHN GARCIA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 THIRTY-DAY OBJECTION DEADLINE (Doc. 12)

Findings and Recommendations Following Screening of Amended Complaint

I. Screening Requirement and Standard

Plaintiff Lewis Perry, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 21, 2012. On October 3, 2012, the Court screened Plaintiff's complaint and dismissed it, with leave to amend, for failure to state a claim under section 1983. Plaintiff filed an amended complaint on October 31, 2012.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Discussion

A. Summary of Allegations

Plaintiff is currently incarcerated at Pleasant Valley State Prison, and he brings this action against Doctor John Garcia, a general surgeon; Doctor Freeman, a plastic surgeon; and Warden R.

H. Trimble for violating his rights under the Eighth Amendment of the United States Constitution.

In his amended complaint, Plaintiff alleges that Defendant Garcia had "full knowledge of the end result of an incomplete surgical procedure such as in [Plaintiff's] case [which] could result in a real and true d[e]trimental condition" such as Plaintiff suffers to date.*fn1 (Doc. 12, Amend. Comp., p. 3.) Plaintiff alleges that as of October 11, 2012, a new, corrective surgery is needed to stop the ongoing infection, which will render him sterile.

Plaintiff alleges that these events are a direct result of Defendant Garcia's lack of professionalism and that Defendant Freeman should also be held responsible because he played a large part in the events. Plaintiff alleges that the wounds were not surgically cleaned or properly closed by Defendant Garcia, and the situation now requires additional surgery at great pain to Plaintiff.

Finally, Plaintiff alleges that Defendant Trimble violated his rights under the Eighth Amendment and while he may not allege the facts professionally, the end ...


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