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Clarence Leon Dews v. Kern Radiology Medical Group

March 18, 2013

CLARENCE LEON DEWS,
PLAINTIFF,
v.
KERN RADIOLOGY MEDICAL GROUP, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 4) FIRST SCREENING ORDER AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

I. PROCEDURAL HISTORY

Plaintiff Clarence Leon Dews is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on February 21, 2012 pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

Plaintiff filed a First Amended Complaint (ECF No. 4) on March 2, 2012, without his original Complaint having been screened. The First Amended Complaint is now before the Court for screening.

II. SCREENING REQUIREMENT

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990), quoting 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff alleges that:

In September 2010, he suffered a stroke, causing him to fall and injure his right shoulder. The shoulder injury resulted in extreme pain, internal bleeding, increase in his already elevated blood pressure, and fever.

Plaintiff arrived at North Kern State Prison ("NKSP") in December 2010. While incarcerated at NKSP, Defendants were indifferent to his medical needs, refusing to properly evaluate, diagnose and treat his shoulder injury. Defendants Walley and Kern Radiology Group incorrectly read and reported on Plaintiff's shoulder x-ray. Notwithstanding reports from NKSP nursing staff that Plaintiff needed emergency medical care, Defendants Yuan MD, Ebenshahidi MD and Selieman MD all stated that there was nothing physically wrong with Plaintiff and that his symptoms were psychiatric.

Plaintiff filed a state court writ seeking emergency medical care. It was denied. His inmate grievances seeking medical treatment also were denied.

After sixteen months of suffering, Plaintiff underwent shoulder surgery to repair a torn rotator cuff.

Plaintiff names as Defendants (1) Kern Radiology Medical Group Inc., (2) Tracy Walley, NKSP medical staff member, (3) Sylvia Lopez, NKSP Chief Medical Officer, (4) David Yuan MD, NKSP medical staff member, (5) Ebenshahidi MD, NKSP medical staff member, (6) C. McPherson, NKSP Health Care Appeals Coordinator, (7) Selieman MD, NKSP medical staff member.

Plaintiff seeks (1) a declaration that Defendants violated his rights, (2) an injunction that he be transferred to a "270" style prison consistent with his Americans with Disabilities Act ("ADA") status and medical needs and receive further shoulder surgery, (3) monetary relief.

IV. ANALYSIS

A. Pleading Requirements Generally

To state a claim under section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.' " Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 667-68.

B. Certain Defendants Not Linked to Alleged Violation

Plaintiff has not linked Defendants Lopez and McPherson to any alleged violation of his rights.

Under 42 U.S.C. § 1983, Plaintiff must demonstrate that each named Defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The Supreme Court has emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer.

Iqbal, 556 U.S. at 677. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 676. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant, through his ...


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