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Albert Ledesma v. Doctor Swaye

April 2, 2013

ALBERT LEDESMA,
PLAINTIFF,
v.
DOCTOR SWAYE,
DEFENDANT.



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

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND ECF No. 1 RESPONSE DUE WITHIN THIRTY DAYS

I. Background

Plaintiff Albert Ledesma ("Plaintiff") is a former prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On June 26, 2012, Plaintiff filed his Complaint, which is presently before the Court for screening. ECF No. 1.

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). "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." Id. § 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, 2 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 3

U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 4 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 5 allegations are accepted as true, legal conclusions are not. Id. 6

II. Summary of Complaint 7

Plaintiff was incarcerated at Kern County Lerdo Detention Facility in Bakersfield, California, 8 at the time these events occurred. Plaintiff names as Defendant medical doctor Swaye. 9

Plaintiff alleges the following. On January 28, 2012, Plaintiff fell from his defective crutches, falling on his hand. Plaintiff did not doubt that his hand was broken. Plaintiff's hand was swollen and in extreme pain. Plaintiff made several requests to receive treatment. Plaintiff's crutches were taken. Plaintiff was finally sent out on February 1, 2012 to Kern Medical Center for his hand to be looked at and casted.

Medical staff at Lerdo refused to give Plaintiff the right pain medication. ON February 6, 2012, Plaintiff's pain medication for his knee expired. On February 31*fn1 Plaintiff went for sick call to be seen by Defendant Swaye. Defendants Swaye said that he would put Plaintiff up for x-rays tomorrow. Plaintiff requested medication for his hand, but was denied.

Plaintiff fails to describe what relief he requests.

III. Analysis

Plaintiff fails to state a claim. First, Plaintiff has not stated what relief he requests as required by Rule 8(a) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 8(a)(3) ("a demand for the relief sought, which may include relief in the alternative or different types of relief").

Second, Plaintiff fails to state a claim with respect to the merits of his action. The Court presumes that Plaintiff brings a claim for violation of the Eighth Amendment. The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the ...


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