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Cruz v. Pacific Orthopedic Medical Group

United States District Court, Eastern District of California

December 24, 2014

JAMES F. CRUZ, Plaintiff,
v.
PACIFIC ORTHOPEDIC MEDICAL GROUPS, et al., Defendants.

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF, 1]

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

Plaintiff filed the instant complaint on October 17, 2014.

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, Plaintiffs 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

In April 2003, while jogging Plaintiffs ankle popped. Plaintiff complained to the nursing staff during the course of his confinement from 2003 to 2007, and in response Plaintiff received numerous x-rays.

In July 2007, Plaintiff requested an MRI. On September 6, 2007, surgery was performed. However, Plaintiffs ankle was still in pain. On September 17, 2007, Plaintiff saw the doctor who performed the surgery. The doctor began tapping on the ankle, which caused Plaintiff horrendous pain, to which the doctor stated "oh shit."

The doctor then stated that he was going to operate on Plaintiffs ankle and right shoulder, but blood tests and chest x-rays were necessary prior to the surgery. After the preliminary examination, the doctor stated that the surgery could not be performed because of abnormality was discovered in Plaintiffs chest. A follow-up examination was scheduled.

Plaintiff filed an inmate appeal on May 21, 2008, which was complete on January 27, 2010.

Plaintiff then filed health care appeal forms on March 28, 2012, and Plaintiff received a response on October 17, 2012. A denial ...


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