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McGary v. Manglicmot

United States District Court, N.D. California, San Francisco Division

December 3, 2014

LINA MANGLICMOT; et al., Defendants

Karlton McGary, Plaintiff, Pro se, Eloy, AZ.


LAUREL BEELER, United States Magistrate Judge.


Karlton Wayne McGary, an inmate at the North Fork Correctional Facility in Sayre, Oklahoma, has filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983. The court reviewed his complaint and dismissed it with leave to amend. Mr. McGary then filed an amended complaint, which is now before the court for review under 28 U.S.C. § 1915A. This order determines that the amended complaint states claims upon which relief may be granted and requires the Marshal to serve process on four defendants.


Mr. McGary alleges the following in his amended complaint about events and omissions that occurred while he was incarcerated at the Correctional Training Facility in Soledad. Mr. McGary has " advanced lower lumbar degen[e]rative disc disease, " which causes him acute and occasionally disabling pain. ECF No. 8 at 2. Physicians have prescribed " heavy narcotics" to manage his pain, id., and those medications can only be prescribed at facilities designated as correctional medical facilities. Physical therapy also is prescribed for patients at the advanced stages of this condition. As of 2009, the California Department of Corrections (" CDCR") determined that Mr. McGary could be housed only at institutions designated as medical facilities by the CDCR, where a primary care physician would monitor his medications and schedule physical therapy.

On April 11, 2014, registered nurse Lina Manglicmot was deliberately indifferent when she signed off on a health care transfer form, knowing of his medical needs. As a result of her actions, Mr. McGary was denied pain management medications that had been prescribed for him.

Dr. G. B. Palomero was deliberately indifferent to Mr. McGary's medical needs " on numerous occasions." ECF No. 8 at 5. Dr. Palomero failed to update Mr. McGary's CDC-1845 disability placement program verification form; this failure allowed Mr. McGary to be transferred to an out-ofstate facility that could not offer the level of health care he required. Dr. Palomero refused to discuss long-term pain management medications already approved for Mr. McGary; this refusal caused Mr. McGary to be without pain medications for extended periods of time. Dr. Palomero failed to " rectify the plaintiff's medical disability status from a facility not designated as a CDCR medical facility" -- apparently meaning that Dr. Palomero failed to cause him to be returned from the out-of-state facility to a CDCR medical facility -- thereby causing him to experience undue pain and suffering, ECF No. 8 at 6.

On September 25, 2013 or September 25, 2014, captain P. Marziello and CCI J. Summers were deliberately indifferent by referring Mr. McGary for a non-adverse transfer to a non-medical out-ofstate facility without checking with health care staff to see if the transfer was appropriate. As a result, Mr. McGary was denied pain medications that had been prescribed for him and experienced undue pain and suffering.


A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 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. See id. at § 1915A(b). Pro se complaints must be liberally construed. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Deliberate indifference to a prisoner's serious medical needs amounts to the cruel and unusual punishment prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A prison official violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). For the objective prong of the deliberate indifference test in a medical care claim, the plaintiff " must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citation and internal quotation marks omitted). For the subjective, or " deliberate indifference" prong, the plaintiff must show " (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Id. (citation and internal quotation marks omitted).

The amended complaint alleges that the four defendants' actions or omissions caused Mr. McGary to be sent to an out-of-state facility at which his serious medical needs could not be addressed adequately. Liberally construed, the amended complaint states cognizable ยง 1983 claims against nurse Manglicmot, Dr. Palomero, captain P. ...

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