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Garcia v. Balagso

United States District Court, E.D. California

July 17, 2015

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

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

DENNIS L. BECK, Magistrate Judge.

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.

Pursuant to Court order, Plaintiff filed a First Amended Complaint on March 6, 2015. 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, 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. FACTUAL ALLEGATIONS

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

Plaintiff alleges that on September 2, 2013, Plaintiff and his cellmate told Officers Corona and Flores that his blood sugar was a little low and that he wanted to be seen by medical. Officer Flores called medical and told Plaintiff that medical staff was not there, but that he would be seen by third watch medical. Plaintiff alleges that he then had a seizure. His cellmate gave him "jellies" to raise his blood sugar and called "man down." ECF No. 19, at 3. They told Officers Corona and Flores about his seizure, and the officers called medical. Medical told the officers that if Plaintiff did not stop complaining, he would get a 115.

Sometime later, Plaintiff had another seizure and was taken to medical.

On September 3, 2013, Plaintiff asked Defendant Purdy why she and other medical staff refused to go and treat him for low blood sugar. Defendant Purdy told Plaintiff that it was about to be shift change and they weren't going to deal with him. Defendant Purdy then began to laugh. Plaintiff and Defendant Purdy spoke about Plaintiff's life "not being a joke, " and she tried to apologize. ECF No. 19, at 4. Plaintiff contends that the members of the medical staff were found guilty of violating one or more CDCR policies.

Plaintiff alleges that Defendant Balagso was also asked the same question, but she was ...


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