Rhodes v. Fresno County

          ORDER REQUIRING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT OR NOTIFY THE COURT OF INTENT TO PROCEED ON CLAIM FOUND TO BE COGNIZABLE [ECF No. 22]

         Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on November 23, 2015. Local Rule 302.

         Currently before the Court is Plaintiff's first amended complaint, filed on June 20, 2016, in response to the Court's February 2, 2016, screening order dismissing the original complaint with leave to amend.

         I.

         SCREENING REQUIREMENT

         The Court is required to screen complaints brought by persons proceeding in pro per. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 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).

         While persons proceeding pro se are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's 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

         Plaintiff names nurse practitioner Vivian, nurse practitioner Pat, senior official L. Her, registered nurse D. Lang, and lieutenant K. Nunez, as Defendants.

         On July 21, 2014, at approximately 5:15 p.m., Plaintiff was taken to the infirmary to see nurse practitioner Pat. Pat told Plaintiff they were not going to do anything, not going to change or take out the catheter until Plaintiff could see another physician. Defendant Pat knew Plaintiff was injured, knew he was bleeding, knew nurse Vivian injured him, and did nothing to stop the bleeding.

         On July 28, 2014, nurse Vivian punched a hole internally causing bleeding. Nurse Vivian deprived Plaintiff of his constitutional rights when she injured Plaintiff and did nothing to stop the bleedings which led to difficulty passing urine, infection, fevers, sweats, burning in penis, suprapubic abdominal pain, nausea and vomiting for weeks.

         After returning from Community Medical Center to the Fresno County Jail, medical staff did not follow Doctor Shu's recommendations.

         On July 29, 2014, at approximately 6:00 p.m., Plaintiff was called for follow-up and was advised by officer Her it would be a long time because the office was busy. Plaintiff had been bleeding now for almost forty-eight hours and was forced ...