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Lopez v. Burris

United States District Court, Ninth Circuit

December 11, 2013

ROBERTO CAMPA LOPEZ, Plaintiff,
v.
OFFICER S. BURRIS; LIEUTENANT R. RICE; WARDEN G.D. LEWIS; SECRETARY MATTHEW CATE; NURSE POLLY; CHIEF MEDICAL OFFICER MICHAEL C. SAYRE; Defendants.

ORDER OF SERVICE

JEFFREY S. WHITE, District Judge.

INTRODUCTION

Plaintiff, a California prisoner at Pelican Bay State Prison, filed this pro se civil rights complaint under 42 U.S.C. § 1983. The complaint was dismissed with leave to amend, and Plaintiff timely amended. For the reasons discussed below, the complaint is ordered served upon Defendants and dispositive motions are scheduled.

STANDARD OF REVIEW

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only "give the defendant fair notice of what the.... claim is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1974. Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

LEGAL CLAIMS

Plaintiff alleges that he suffers from periodic asthma attacks. He alleges that Defendants Burris, Rice, Lewis, Cate, Sayre and Polly, have knowingly caused him to suffer dangerous delays in receiving emergency medical attention for his asthma. He alleges that they have done so by retaining him in the Secured Housing Unit ("SHU") where inmates have to wait up to thirty minutes for emergency care, instituting policies causing such delays, failing to correct such delays, and in the case of Defendant Polly, acutally providing delayed medical care. When liberally construed, Plaintiff's allegations state a cognizable claim against Defendants for deliberate indifference to his serious medical needs in violation of the Eighth Amendment.

CONCLUSION

For the reasons set out above, the Court orders as follows:

1. The Clerk of the Court shall issue summons and the United States Marshal shall serve, without prepayment of fees, a copy of the amended complaint (dkt. 6) and all attachments thereto, and a copy of this order upon Defendants Officer S. Burris; Lieutenant R. Rice; Warden G.D. Lewis; Nurse Polly; Chief Medical Officer Michael C. Sayre at Pelican Bay State Prison, and Secretary Matthew Cate at the California Department of Corrections and Rehabilitation in Sacramento, California.

The Clerk shall also mail a courtesy copy of the complaint with all attachments thereto, and this order to the ...


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