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Lomack v. Harris

United States District Court, N.D. California

April 5, 2017

LAMONT LOMACK, Plaintiff,
v.
N. HARRIS, et al., Defendants.

          ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO CLERK

          EDWARD J. DAVILA, UNITED STATES DISTRICT JUDGE

         Plaintiff, a California state prisoner, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against medical officials at Salinas Valley State Prison (“SVSP”). After an initial review, the Court found the complaint was attempting to state a claim under the Eighth Amendment for deliberate indifference to serious medical needs. (Docket No. 14 at 2-3.) However, Plaintiff failed to identify a specific individual as a defendant whose actions caused the violation. (Id. at 3.) The Court also advised Plaintiff that a claim of “medical neglect” was insufficient to make out a violation of the Eighth Amendment, and that any such claim would be dismissed for failure to state a claim. (Id. at 3-4.) Plaintiff has filed an amended complaint. (Docket No. 15.)

         DISCUSSION

         A. Standard of Review

         A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

         To state a claim under 42 U.S.C. § 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).

         B. Plaintiff's Claims

         Plaintiff claims that on November 24, 2014, he injured his left hand at SVSP. (Am. Compl. at 3.) He brought it to the attention of Defendants Dr. N. Harris and Dr. L. Gamboa “with negative results.” (Id.) About four months later, he was sent to an outside hospital where it was discovered that he had a serious injury to his left hand but since “it had been so long, ” there was “nothing they could do.” (Id.) Plaintiff received injections in his left hand as well as medication. (Id.) Plaintiff claims that he suffers chronic pain and that they continue to deny him proper medical attention. (Id.) Liberally construed, Plaintiff states a cognizable claim of deliberate indifference to serious medical needs under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).

         Plaintiff names the CDCR as a defendant “in the official capacity” but has made no specific allegations of wrongdoing. Accordingly, the CDCR is DISMISSED from this action.

         CONCLUSION

         For the reasons state above, the Court orders as follows:

         1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the amended complaint, (Docket No. 15), all attachments thereto, and a copy of this order upon Defendants Dr. N. Harris and Dr. L. Gamboa at Salinas Valley State Prison (P.O. Box 1020, Soledad, CA 93960-1020). The Clerk shall also mail a copy of this Order to Plaintiff.

         All other Defendants are DISMISSED from this action Plaintiff has made no specific claims against them.

         2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure requires them to cooperate in saving unnecessary costs of service of the summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this action and asked by the Court, on behalf of Plaintiff, to waive service of the summons, fail to do so, they will be required to bear the cost of such service unless good cause shown for their failure to sign and return the waiver form. If service is waived, this action will proceed as if Defendants had been served on the date that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer before sixty (60) days from the day on which the request for waiver was sent. (This allows a longer time to respond than would be required if formal service of summons is necessary.) Defendants are asked to read the statement set forth at the foot of the waiver form that more completely describes the duties of the parties with regard to waiver of service of the summons. ...


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