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Michael D. Harrison v. Warden D. Adams

May 3, 2013

MICHAEL D. HARRISON,
PLAINTIFF,
v.
WARDEN D. ADAMS, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS FOR ACTION TO PROCEED ON COGNIZABLE EIGHTH AMENDMENT CLAIM AGAINST DEFENDANTS JONES, MOORE, BURNS, KIM, DAVA, URBANO, CAMPOS, PARSONS, M. GONZALEZ, C. GONZALES, CISNEROS, AND ZAKARI; AND FOR OTHER CLAIMS AND DEFENDANTS TO BE DISMISSED FOR FAILURE TO STATE A CLAIM (ECF No. 145) FOURTEEN-DAY OBJECTION DEADLINE

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Michael D. Harrison ("Plaintiff"), a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), brings this civil rights action pursuant to 42 U.S.C. § 1983.

This action is proceeding on Plaintiff's Fifth Amendment Complaint filed May 3, 2011, alleging that Defendants violated Plaintiff's Eighth Amendment right to adequate medical care. (ECF No. 70.) Plaintiff's action is proceeding against Defendants Moore, Jones, Burns, Kim, and Dava. (ECF Nos. 65 & 75.)

Plaintiff has made numerous requests to file an amended complaint adding additional defendants identified in discovery. (ECF Nos. 108, 117, 119, 124, 126, 132.) The Court granted Plaintiff's requests. (ECF No. 136.) Plaintiff has since filed an Eighth Amendment Complaint which is now before the Court for screening. (ECF No. 145.)

II. SCREENING REQUIREMENTS

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. 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 (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.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 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. Iqbal, 556 U.S. at 678.

III. SUMMARY OF EIGHTH AMENDED COMPLAINT

Plaintiff brings this action for violations of his Eighth Amendment right to adequate medical care. He sues the following individuals as Defendants in their individual and official capacities: 1) T. Moore, correctional sergeant for the CDCR, 2) T. Davis Jones, member of the medical staff for the CDCR, 3) C. Rabaino-Burns, member of the medical staff for the CDCR, 4) J. Kim, member of the medical staff for the CDCR, 5) E. Dava, member of the medical staff for the CDCR, 6) E. Urbano, member of the medical staff for the CDCR, 7) E.V. Roth, member of the medical staff for the CDCR, 8) F. Campos, member of the medical staff for the CDCR, 9) T. Cisneros, member of the medical staff for the CDCR, 10) M. Parsons, member of the medical staff for the CDCR, 11) C. Gonzales, member of the medical staff for the CDCR, 12) M. O'Neal, member of the medical staff for the CDCR, 13) M. Galvan, member of the medical staff for the CDCR, 14) C. Bastianon, member of the medical staff for the CDCR, 15) B. Johnson, member of the medical staff for the CDCR, 16) M. Gonzalez, member of the medical staff for the CDCR, 17) C. Raygoza, member of the medical staff for the CDCR, 18) J.G. Coronado, member of the medical staff for the CDCR, 19) R. Casio, member of the medical staff for the CDCR, 20)

G. Vincente, member of the medical staff for the CDCR, 21) Tumayo, member of the medical staff for the CDCR, 22) Zakari, member of the medical staff for the CDCR, and 23)

B. Edmonds.*fn1

Plaintiff makes the following allegations (which are the same as he made in his Fifth Amended Complaint):

On April 20, 2007, Plaintiff's arm was broken. (Am. Compl. at 11.) Defendants Jones, Moore, and Jones declined his request to see a doctor or be taken to the hospital. (Id. at 11-12.) On May 8, 2007, Defendant Rabaino-Burns refused Plaintiff's request to send him to the hospital. (Id. at 12.) Plaintiff saw Defendant Kim several times in 2007 regarding an infection in his arm but he refused to admit Plaintiff to the hospital for treatment. (Id. at 12-13.) Defendant Dava saw Plaintiff in March of 2008 and refused to have Plaintiff admitted to the hospital, provide Plaintiff with antibiotics, or refer Plaintiff to another doctor. (Id. at 15-16.)

Plaintiff's Eighth Amended Complaint adds the following parties allegedly having liability and the following new allegations ...


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