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Gerald Lee Miller, Jr v. Dr. J. Akanno

March 6, 2013

GERALD LEE MILLER, JR.,
PLAINTIFF,
v.
DR. J. AKANNO, M.D., ET AL., DEFENDANTS.



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

FIRST SCREENING ORDER DISMISSING AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 13) THIRTY-DAY DEADLINE

First Screening Order

I. Screening Requirement and Standard

Plaintiff Gerald Lee Miller, Jr., a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 22, 2012. On January 22, 2013, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a). Plaintiff seeks damages and injunctive relief for the violation of his rights under the United States Constitution.

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.

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, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff's claims must be facially plausible to survive screening, 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. Allegations

Plaintiff, who is incarcerated at Kern Valley State Prison (KVSP), bring this actions against Dr. J. Akanno, Lab Technician Japee, and Health Care Services Chief Executive Officer L. D. Zamora for retaliation in violation of the First Amendment and denial of medical care in violation of the Eighth Amendment.

Plaintiff alleges that on July 13, 2011, he was given contaminated food at Calipatria State Prison, and he continues to suffer from health problems as a result. While still at CSP-Calipatria, a biopsy was ordered for Plaintiff. However, before it was done, he was transferred to KVSP.

On December 14, 2011, Plaintiff requested to see a doctor at KVSP because he was still sick and suffering. Plaintiff was told that he was scheduled for the biopsy within a few weeks. On December 23, 2011, Plaintiff's stomach problems worsened and he was unable to eat without vomiting, so he was placed on dicyclomine by Dr. Chen.

On January 7, 2012, Plaintiff was transferred away from KVSP for a civil jury trial.*fn1 Plaintiff alleges that Defendant Akanno was once a party to the case.*fn2

Plaintiff was transferred back to KVSP on February 3, 2012, still suffering from illness and stomach pain. Plaintiff was taken to the medical triage area on February 7, 2012, where he was given a GI cocktail for his stomach pain, scheduled for a follow-up with ...


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