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Eugenio Luis Nogueras v. S. Lopez

March 12, 2013

EUGENIO LUIS NOGUERAS,
PLAINTIFF,
v.
S. LOPEZ, ET AL.,
DEFENDANTS.



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

FIRST SCREENING ORDER (1) DISMISSING EQUITABLE RELIEF CLAIMS, WITHOUT LEAVE TO AMEND, AND (2) DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 1) THIRTY-DAY DEADLINE

First Screening Order

I. Screening Requirement and Standard

Plaintiff Eugenio Luis Nogueras, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 August 21, 2012.

"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.

Pro se litigants are 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, a former state prisoner, brings this action against Chief Medical Officer S. Lopez, Doctor Larry Dileo, and Registered Nurse Tina Nicoles for violating his rights under the Eighth Amendment of the United States Constitution while he was incarcerated at Kern Valley State Prison (KVSP) in Delano, California.

Prior to his incarceration, Plaintiff was being treated for diverticulitis and he was on a bland, high fiber diet which relied upon fruits and vegetables. While at the Tulare County Jail, Plaintiff was provided with a bland, high fiber diet as recommended by his personal physician.

After his transfer into the custody of the California Department of Corrections and Rehabilitation (CDCR), Plaintiff was treated by outside specialists for various gastrointestinal problems, including hernias, colitis, gastritis, and intestinal polyps. The specialists also recommended a high fiber diet with fruits and vegetables. When Plaintiff returned to KVSP, however, Defendant Dileo prescribed fiber tablets rather than a diet which relied upon fruit and vegetables for increased fiber.

Plaintiff also alleges that he had hernia surgery on June 29, 2011, and the incision was closed with surgical staples. When Plaintiff was seen by Defendant Nicoles to have the staples removed two weeks later, she used a stationery staple remover, which Plaintiff alleges caused him extreme,

unnecessary pain.

B. Eighth Amendment Medical ...


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