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McDermott v. Borja

United States District Court, E.D. California

March 28, 2017

SEAN McDERMOTT, Plaintiff,
v.
ISMELDA BORJA, et al., Defendants.

          SCREENING ORDER ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND THIRTY-DAY DEADLINE FOR PLAINTIFF TO FILE AMENDED COMPLAINT ORDER FOR CLERK TO SEND PLAINTIFF A CIVIL COMPLAINT FORM

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Sean McDermott (“Plaintiff”) is a former state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On July 13, 2016, Plaintiff filed the Complaint commencing this action, which is now before the court for screening. (ECF No. 1.)

         II. 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 is required to 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)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. SUMMARY OF COMPLAINT

         Plaintiff is presently out of custody. The events at issue in the Complaint allegedly occurred at the California City Correctional Facility (CCCF) in California City, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation. Plaintiff names as defendants Imelda Borja (Physician's Assistant), Dr. Chen Ho, and Marvin Ross (Chief Medical Officer) (collectively, “Defendants”), who were employed at CCCF during the relevant time period.

         Plaintiff's allegations follow. On July 5, 2001, Plaintiff had surgery for a prosthetic hip replacement. Plaintiff was advised by Dr. Reinhold [not a defendant], orthopedic surgeon at the Riverside County Regional Medical Center, that the hip implant would need to be replaced after ten years.

         In 2012, Plaintiff's hip became so painful that sometimes he was unable to walk. Plaintiff began requests for medical care. On May 16, 2013, Plaintiff filed a medical grievance complaining about inadequate medical care and requesting to be seen by a qualified doctor for testing and evaluation at a county hospital. On February 5, 2014, Plaintiff was transferred from Avenal State Prison to CCCF.

         Upon arriving at CCCF, Plaintiff's pain was so excruciating that at times he could not function with daily activities. On February 13, 2014, Plaintiff began submitting medical requests to be seen about his hip replacement and pain. On February 13, 2014, Plaintiff was seen by defendant Chief Medical Officer (CMO) Marvin Ross. Plaintiff was given an x-ray, after which defendant Ross stated that everything was fine. Plaintiff's medical grievance was denied on March 3, 2014.

         On June 13, 2014, Plaintiff was seen by orthopedic physician Dr. Aleda [not a defendant]. Dr. Aleda said the hip replacement was worn and recommended that Plaintiff return to see him in a year.

         On April 7, 2015, Plaintiff was seen by defendant Physician's Assistant Imelda Borja. Plaintiff told her that he had not had a follow-up with the orthopedic physician and he was in terrible pain and sometimes unable to walk. Defendant Borja stated that she had consulted with defendant CMO Ross, that Plaintiff did not need a follow-up with Dr. Aleda, and that Plaintiff was just fine. The same day, Plaintiff filed a medical grievance against defendants Borja and Ross, and the grievance was given to defendant Dr. Chen Ho for resolution.

         On August 24, 2015, Plaintiff explained to Dr. Ho that he was in excruciating pain and sometimes unable to walk. Dr. Chen Ho denied Plaintiff's medical grievance and referred Plaintiff to physical therapy.

         On November 17, 2015, February 11, 2016, and February 16, 2016, Plaintiff had physical therapy. The physical therapist referred Plaintiff back ...


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