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Barclay v. Davey

United States District Court, E.D. California

April 27, 2015

JEFFREY BARCLAY, Plaintiff,
v.
DAVE DAVEY, et al., Defendants.

ORDER: (1) DISMISSING ACTION FOR FAILURE TO STATE A CLAIM (ECF No. 8), AND (2) DENYING MOTION FOR SERVICE (ECF No. 11) DISMISSAL COUNTS AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g) CLERK TO TERMINATE PENDING MOTIONS AND CLOSE CASE

MICHAEL J. SENG, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.) No other parties have appeared in the action.

Plaintiff's complaint (ECF No. 1) was dismissed for failure to state a claim, but he was given leave to amend (ECF No. 7). Plaintiff's first amended complaint is before the Court for screening. (ECF No. 8.)

Also before the Court is Plaintiff's April 6, 2015 motion for an order for service of the complaint. (ECF No. 11.)

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, malicious, " or 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).

II. PLEADING STANDARD

Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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 set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id . Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

III. PLAINTIFF'S ALLEGATIONS

Plaintiff complains of acts that occurred during his incarceration at Corcoran State Prison ("CSP"). He names the following individuals as Defendants: (1) Jeffrey Wang, Chief Medical Executive; (2) Teresa Macias, Chief Executive Officer; (3) J. Lewis, Deputy Director of Medical Services; and (3) E. Clark, Chief Medical Officer.

Plaintiff's allegations may be summarized essentially as follows:

Plaintiff previously was incarcerated at San Quentin State Prison. On November 25, 2013, he was seen by an orthopedic specialist who recommended arthroscopic surgery to correct Plaintiff's torn left rotator cuff. On February 4, 2014, San Quentin medical staff noted that surgery was delayed due to complications with Plaintiff's diabetes.

In February 2014, Plaintiff was transferred to CSP. On February 23, 2014, Plaintiff filed a health care appeal seeking referral to ophthalmology, referral to an orthopedist, referral to physical therapy, and surgery. On March 6, 2014, he was interviewed by Defendant Clark regarding the appeal. On April 2, 2014, Defendant Clark granted the appeal in part.[1] Defendant Clark granted Plaintiff's request for ophthalmological referral. He denied the request for orthopedic referral on the ground Plaintiff did not meet "inter Qual criteria for repair of chronic rotator cuff tear" because he experienced no tenderness over the rotator cuff and "there is a question whether the passive range of motion is greater than the active range of motion in abduction." Defendant Clark noted that Plaintiff had been prescribed NSAIDS and physical therapy to assist with his condition. Defendant Clark denied Plaintiff's request for surgery because Plaintiff did not "currently meet the Inter Qual criteria for chronic rotator cuff surgery." He advised Plaintiff that "due to your parole date being near, it would be better to obtain the surgery at an outside facility to be able to obtain continuous care instead of having the surgery while incarcerated and then Paroling making follow-ups impossible."

Plaintiff filed a second level appeal and explained that his parole date was still two years away. He pointed out that Defendant Clark is not an orthopedic specialist and requested to be seen by a specialist. The second level appeal was partially granted by Defendants Wang and Macias on May 14, 2014. Plaintiff's request for an orthopedic specialist and surgery were denied based on Defendant Clark's evaluation that Plaintiff did not meet the criteria for surgery and there was no other reason for an orthopedic ...


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