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Francisco J. Gil v. James A. Yates

May 17, 2013

FRANCISCO J. GIL,
PLAINTIFF,
v.
JAMES A. YATES, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 31)

CLERK SHALL CLOSE THE CASE

SCREENING ORDER

I. PROCEDURAL HISTORY

On June 4, 2010, Plaintiff Francisco J. Gil, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.)

Plaintiff's Complaint (ECF No. 1) and First Amended Complaint (ECF No. 23) were screened and dismissed, with leave to amend, on May 25, 2012 and October 29, 2012, respectively, for failure to state cognizable claims. (ECF Nos. 17, 24.) Plaintiff's Second Amended Complaint (ECF No. 31) 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 SECOND AMENDED COMPLAINT

Plaintiff names the following Pleasant Valley State Prison (PVSP) officials as Defendants: (1) James A. Yates, Warden; (2) Felix Igbinosa, Chief Medical Officer; (3) Ryan, Registered Nurse; (4) Johnson, Licensed Vocational Nurse; and an unspecified number of John Does.

Plaintiff alleges the following:

Valley Fever is a serious disease that can affect various parts of the body and for which there is no cure. The disease is endemic to PVSP where Plaintiff was confined from May 7, 2002 until September 9, 2010. While in custody Plaintiff developed flu like symptoms consistent with Valley Fever contraction. The Defendants denied Plaintiff diagnostic testing necessary for an official diagnosis and treatment. ...


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