United States District Court, E.D. California
MONICO J. QUIROGA, Plaintiff,
AGUILARA, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITH
PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF NO. 18) FOURTEEN
(14) DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
§ 1983. His complaint and first amended complaint were
dismissed for failure to state a claim, but he was given
leave to amend. (ECF Nos. 14, 17.) His second amended
complaint is before the Court for screening.
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. §
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).
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).
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.
is incarcerated at Wasco State Prison but complains of acts
that occurred during his pre-trial detention at the Lerdo
PreTrial Facility. He names as defendants: (1) Nurse
Aguilara, “R.N., L.V.N. or N.A.”; and (2) L.
Porter of the Kern County Sheriff's Office.
allegations may be summarized essentially as follows:
has chronic pain from pins and a plate attached to his left
radius. Defendant Aguilara failed to treat Plaintiff and
refused to review his medical file. She sent him back to his
unit without Tylenol or pain management.
also complains, in effect, that his treatment was purposely
delayed. According to Plaintiff, Defendant Porter recorded
that Plaintiff had refused sick call when, in fact, he had
not. This alleged refusal delayed Plaintiff's treatment
by thirty days.
alleges this conduct violated his due process right to
adequate medical care. He wishes to receive “proper
medical treatment, proper chronic pain medication, surgery to
remove 9 pins 6 ...