United States District Court, E.D. California
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
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
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.
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).
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
SUMMARY OF COMPLAINT
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.
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.
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.
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
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
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.
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.
November 17, 2015, February 11, 2016, and February 16, 2016,
Plaintiff had physical therapy. The physical therapist
referred Plaintiff back ...