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Garcia v. Balagso

United States District Court, E.D. California

December 2, 2014

ALEJANDRO GARCIA, Plaintiff,
v.
BALAGSO, et al., Defendants

Alejandro Garcia, Plaintiff, Pro se, CALIPATRIA, CA.

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Dennis L. Beck, UNITED STATES MAGISTRATE JUDGE.

THIRTY-DAY DEADLINE

Plaintiff Alejandro Garcia (" Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on June 2, 2014, in the United States District Court for the Southern District of California. The action was transferred to this Court on June 24, 2014. He names North Kern State Prison LVNs M.V. Balagso, Purdy and Jimenez as Defendants.[1]

A. SCREENING 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, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. FACTUAL ALLEGATIONS

Plaintiff is currently incarcerated at Calipatria State Prison. The events at issue occurred while Plaintiff was incarcerated at North Kern State Prison.

Plaintiff alleges that on September 2, 2013, Defendants Balagso, Purdy and Jimenez refused to respond to a 'man down' call by staff at about 1:00 p.m. Plaintiff, a diabetic, explains that he started to feel dizzy and he told his cellmate to call the correctional officers. Plaintiff had a seizure and thinks he had another attack about two hours later. He only remembers the lightheadedness and then waking up with head and shoulder pain.

Plaintiff contends that the correctional officers did their job by contacting Medical.

Prior to the incident, Medical Staff told the correctional officers that if he did not stop complaining, he would receive a 115 Rules Violate Report.

The next day, Medical Staff told Plaintiff that " it was going to be shift change" and started ...


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