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Fetzer v. Zhang

United States District Court, E.D. California

September 29, 2014

CHRISTOPHER J. FETZER, Plaintiff,
v.
DR. W. ZHANG, Defendants.

FINDINGS AND RECOMMENDATIONS FINDING CERTAIN CLAIMS COGNIZABLE AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS TWENTY-ONE DAY DEADLINE ORDER DIRECTING CLERK OF COURT TO CHANGE SPELLING OF DEFENDANT'S NAME ON DOCKET

DENNIS L. BECK, Magistrate Judge.

Plaintiff Christopher J. Fetzer ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed this action on March 13, 2014.

On August 14, 2014, the Court screened Plaintiff's complaint and found that it stated an Eighth Amendment claim against Defendant Dr. W. Zhang.[1] The Court ordered Plaintiff to file an amended complaint or notify the Court of his willingness to proceed only on this claim.

On September 19, 2014, Plaintiff notified the Court that he wanted to proceed only on the cognizable claim against Defendant Zhang. Accordingly, the Court issues these Findings and Recommendations to dismiss the remaining claims and Defendants.

A. LEGAL STANDARD

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 , 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. 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.'" Id . (quoting Twombly , 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead , 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles , 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton , 588 F.3d 1218, 1235 (9th Cir. 2009); Jones , 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss , 572 F.3d at 969.

B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

Plaintiff is incarcerated at Valley State Prison in Chowchilla, California, where the events at issue occurred.

Plaintiff alleges that on June 14, 2013, he possibly fractured his left pinky finger. He was taken to medical and seen by Nurse Gomez. Nurse Gomez asked Plaintiff what happened and filled out an intake form. She asked Plaintiff to wait so she could speak with Defendant Zhang. After speaking with Defendant Zhang, Nurse Gomez told Plaintiff that Defendant Zhang would not see him. Nurse Gomez told Plaintiff that Defendant Zhang said, "It could possibly be fractured and not sure if x-ray machine is working. He has Indomethacin he can take for the pain." ECF No. 1, at 3.

Plaintiff alleges that if Defendant Zhang had seen him for his injury, he would have discovered that (1) Indomethacin was not prescribed for his finger injury; and (2) Plaintiff had not received a prescription for Ranitideine, which he needs in order to take Indomethacin.

Plaintiff contends that Defendant Zhang's refusal to see him caused Plaintiff pain and suffering.

According to Plaintiff's exhibits, which he cites in the factual allegations, Plaintiff was not seen again until June 17, 2013. Thereafter, Plaintiff received treatment for a "tuft ...


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