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Billy Rae Maldonado, Plaintiff v. James Yates

May 6, 2013

BILLY RAE MALDONADO, PLAINTIFF,
v.
JAMES YATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THIS CASE FOR FAILURE TO STATE A CLAIM (Doc. 16.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS

I. BACKGROUND

Billy Rae Maldonado ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint commencing this action on October 18, 2011. (Doc. 1.) On November 2, 2011, the Court issued an order striking the Complaint for lack of Plaintiff's signature, with leave to amend. (Doc. 9.) On November 10, 2011, Plaintiff filed the First Amended Complaint. (Doc. 12.) On September 20, 2012, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 13.) On November 9, 2012, Plaintiff filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 16.)

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 Afrivolous 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). ANotwithstanding 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 is required to contain Aa 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 A[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, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff=s allegations are taken as true, courts Aare 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). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal,556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF SECOND AMENDED COMPLAINT

The events at issue in the Second Amended Complaint occurred at Pleasant Valley State

Prison (PVSP) in Coalinga, California, where Plaintiff is presently incarcerated. Plaintiff names the following individual defendants: Dr. Coleman, C. Roberts (RN), Dr. Flemming, Dr. Vilaysane, Dr. Chokatos, Dr. Amenaval, Dr. Taherpour, Dr. Barry J. Green, Dr. Randolph Wilson III, Dr. J. Singh, Dr. Evans, and Dr. Junior Fortune. Plaintiff's factual allegations follow.

When Plaintiff arrived at PVSP, the RN did not check Plaintiff's medical records or ask him about his health conditions and mental disability. C. Roberts (RN) fabricated a statement that Plaintiff was fit for full duty food handling.

Plaintiff has a medical condition affecting his lower back and spine which causes excruciating pain and suffering. Plaintiff is unable to work due to injuries to his shoulders, knees, ankles, left wrist, left tibia, deteriorating disc, inflammation, poor circulation, and numbness. He is unable to bend and walk because of a right hip injury from October 2003. Plaintiff has had accidents since the age of 2 1/2 when he fell out the window of a two story building. At age 14, Plaintiff fell sixty feet from a tree, suffering serious injuries. In 1984, Plaintiff fell twenty seven feet from a cliff while putting out a brush fire and took twenty-two months to heal. Hot and cold weather affect Plaintiff's injuries.

On July 22, 2010, Plaintiff filed a request for accommodation under the American Act Disability (sic). Plaintiff was refused a lower tier bunk by medical staff pursuant to a policy implemented by the medical examiner.

On February 2, 2007, Plaintiff was scheduled to be examined by Dr. Coleman "for shoulders lumbar lower back spine knees ankles." 2ACP, Doc. 16 at 4:7-8. Dr. Coleman did not give Plaintiff any medication for his excruciating pain and suffering.

On February 19, 2007, Plaintiff was scheduled to be examined by Dr. Flemming. Plaintiff was supposed to get steroid shots for his chronic health condition. Dr. Flemming changed his mind and gave Plaintiff morphine instead. Plaintiff said he did not want morphine. Dr. ...


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