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Billy Ray Maldonado v. R. H. Trimble

April 2, 2013

BILLY RAY MALDONADO, PLAINTIFF,
v.
R. H. TRIMBLE, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM ECF No. 10 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

I. Background

Plaintiff Billy Ray Maldonado ("Plaintiff") is a prisoner in the custody of the California

Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On December 30, 2011, Plaintiff filed his Complaint. On October 9, 2012, the Court screened Plaintiff's Complaint and dismissed it for failure to state a claim, with leave to amend. On November 5, 2012, Plaintiff filed his First Amended Complaint. ECF No. 10.

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). 2

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 5

A complaint must contain "a short and plain statement of the claim showing that the pleader 6 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of First Amended Complaint

Plaintiff is incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: doctor D. Coleman PA-C; Doctor Flemming PA-C; Doctor Barry J. Green PA-C; Doctor Randolph Wilson III PA-C; Doctor Singh PA-C; Doctor Evans P.T. PA-C; and Doctor Junior Fortune PA-C.

Plaintiff alleges the following. On February 2, 2007, Defendant Coleman saw Plaintiff and denied him steroid shots for his shoulders, and lumbar lower back spine. Defendant Coleman did not examine or diagnose Plaintiff for stiffness, being unable to walk straight. No medication was given to Plaintiff for excruciating pain and suffering.

On November 30, 2007, Plaintiff was scheduled to be seen by Defendant Flemming for his shoulder pain, lumbar, lower back, spine, knees, and ankles. Defendant Flemming told Plaintiff that he would give Plaintiff steroid shots, but then said he would give Plaintiff morphine. Plaintiff did not want morphine, and would rather have the steroid shots instead. Physician did not give Plaintiff medication for excruciating pain and suffering.

On September 17, 2010, Plaintiff was scheduled to be seen by Defendant Green, who did not give Plaintiff any medication for excruciating pain and suffering. On October 5, 2010, Plaintiff was scheduled to be seen by Defendant Wilson, who did not give Plaintiff any medication for his chronic physical health condition. 2

On December 22, 2010, Plaintiff was scheduled to be seen by Defendant Singh. After she 3 examined plaintiff, she told him that he should get on psych*fn1 medication for pain. Defendant Singh 4 referred Plaintiff to physical therapy at central health with Defendant Evans before making her 5 decision on the medication. Plaintiff asked Defendant Evans for steroid pills for his excruciating 6 pain and ...


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