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Millner v. Biter

United States District Court, E.D. California

May 8, 2014

JAMES W. MILLNER, Plaintiff,
v.
MARTIN BITER, et al., Defendants.

ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 15]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff James W. Millner is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff initiated the instant action on October 25, 2013, in the United States District Court for the Northern District of California. On December 9, 2013, the action was transferred to this Court. On February 10, 2014, Plaintiff filed a first amended complaint.

I.

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 or malicious, " that "fails to state a claim on which relief may be granted, " or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

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 demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal , 556 U.S. at 676-677; Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal , 556 U.S. at 678-79; Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal , 556 U.S. at 678; Moss , 572 F.3d at 969.

II.

COMPLAINT ALLEGATIONS

Plaintiff names Warden Biter, Warden Folk, J. Anderson, D. Hicks, Sandoval, P. Vera, Flores, W. Seetster, J. Pelago, R. Sulier, D. Rodriguez, O. Marroquin, J.S. Diaz, Ngadjou, Pair, Dr. Mui Tell, Dr. Lozovoy, Dr. Chin, Dr. N. Kamar, Dr. Parton, J. Blackwell, and unidentified John Does as Defendants in this action. The events at issue took place while Plaintiff was housed at Kern Valley State Prison (KVSP). Plaintiff submits that he is mobility impaired, has trouble breathing, and anemia blood discover due to Valley Fever. Plaintiff contends that officers shoved him down to the payment causing several abrasions on his body and three bone breaks in his foot. The Warden told an unnamed Sergeant to take Plaintiff to Delano Hospital for x-rays of his foot. The Doctor at the hospital told the Sergeant that Plaintiff was in need of an evaluation by an orthopedic. Plaintiff's foot was wrapped in a temporary ace bandage.

Subsequently, the Sergeant would not let the hospital give Plaintiff a medical ambulation device and instead required him to hobble on one foot in pain. Plaintiff was never given a cast to treat the three broken bones in his foot, and two days later Plaintiff was transferred to High Desert State Prison (HDSP). While housed at HDSP, Plaintiff felt faint and fell to the ground breaking the radius bone in his arm and dislocating his writs and reinjured his foot. Medical personnel wrapped Plaintiff's arm and writs in an ace bandage and gave him Tylenol 3, noting that he was in need of surgery.

On July 31, 2013, Plaintiff was advised that he was a liability to the prison and he was transferred back to KVSP. Plaintiff's pain medication was not transferred. After surgery on his radius, Plaintiff fell again in his cell causing re-injury. The doctor ordered a second surgery and Plaintiff was retained in the treatment facility for five weeks. After performing blood work, it was discovered that Plaintiff is anemic and was losing blood. The second surgery was not successful and Plaintiff suffers with pain in his arm and wrist. Plaintiff suffered severe mental distress to the point of contemplating suicide.

As a result of the incident, Plaintiff was issued a rules violation report. Officers violated the time limits for conducting the hearing ...


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