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Hernandez v. Aye

United States District Court, E.D. California

March 11, 2015

FAUSTINO LEON HERNANDEZ, Plaintiff,
v.
KHIN AYE, et al., Defendants.

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

DENNIS L. BECK, Magistrate Judge.

Plaintiff Faustino Leon Hernandez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 26, 2014. He names Khin Aye, MD, and California Correctional Health Care Services as Defendants.

A. 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 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 currently housed at Corcoran State Prison ("CSP") in Corcoran, California, where the events giving rise to this action took place.

Plaintiff alleges the following. On January 9, 2013, Plaintiff was seen by CSP Nurse Savage who advised Plaintiff that he would be seen by Defendant Aye for his medical complaints. Defendant Aye then examined Plaintiff and ordered daily medication of Methocarbamol for ten days for muscle spasms that Plaintiff had been experiencing. At the expiration of ten days on January 19, 2013, Defendant Aye discontinued the medication Amitriptyline which Plaintiff had been receiving morning and evening for chronic pain. Defendant Aye then prescribed the medication Elavil which Plaintiff had not received before. Plaintiff inquired whether he could be prescribed different medication. Plaintiff states he has been on eight different medications and they have not helped him. Plaintiff states Defendant Aye complained to a CDCR employee "that all inmates just complain and want medication to get high and just crybabies plus it's late I got to go home." Compl. at 5. Plaintiff asked Defendant Aye to look at his left arm. Plaintiff complained that the pain was so sharp it tingles in his fingers, and gets very cold, numb, and stiff. He states he advised Defendant Aye that it was difficult to move his arm because of the tightness and muscle contractions, and that it affected his daily activities. Dr. Aye denied that Plaintiff had serious medical needs and he sent Plaintiff back to his building even though Plaintiff requested an MRI be done.

On January 18, 2013, Plaintiff was again seen by Defendant Aye regarding the x-rays that had been taken. The x-rays showed Plaintiff had serious osteoarthritis and multiple plates and screws with tiny metallic fragments consistent with gunshot wound trauma. Defendant Aye stated he could not prescribe additional medication for these symptoms because it is chronic pain that Plaintiff will always have.

On April 5, 2013, Plaintiff was seen for a follow-up on his arm pain. Plaintiff advised that he was still experiencing sharp pain that affects his daily activities. Defendant Aye stated Plaintiff was normal and he would not be prescribing different medication. At that time, Plaintiff was without medication. Defendant Aye stated that CDCR advised to cut all medication because of budget. Plaintiff states he was suffering severe pain.

Plaintiff states he has a permanent medical classification chrono which states his medical risk is low, with limited duty, and his nursing care acuity is uncomplicated. He states the chrono states he suffers from "stable chronic uncomplicated chronic disease." Compl. at 6. He states he has a "multiple plate and screw fixation of a comminuted open intra-articular distal humeral fracture with an accompanying proximal ulner osteotomy for intra-articular alignment." Compl. at 6. He states he has suffered disfigurement and permanent damage to his left arm, muscles, bone and nerves.

Plaintiff alleges he has been denied proper medical care and has suffered neglect by Defendant Aye. He alleges he California Correctional Health Care Services ("CCHCS") is responsible for the hiring and retention of competent medical staff and for providing prisoners with medical services. Plaintiff claims CCHCS is liable for the actions of its employees and subordinates, including Defendant Aye.

Plaintiff claims he has suffered ongoing pain and suffering as a result of the actions of Defendant Aye. He claims Defendants acted despicably, knowingly, willfully, maliciously, and with reckless or callous disregard for Plaintiff's protected rights. He asks for injunctive relief in the form of proper ...


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