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Cohen v. Alfaro

United States District Court, E.D. California

May 30, 2017

DANIEL COHEN, Plaintiff,
v.
SANDRA ALFARO, Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF, 14) THIRTY (30) DAY DEADLINE

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 11.) No other parties have appeared.

         Plaintiff filed his initial complaint on January 27, 2017. (ECF No. 1.) On February 15, 2017, the Court screened and dismissed with leave to amend Plaintiff's original complaint. (ECF No. 10.)

         Plaintiffs amended complaint (“FAC”) is now before the Court for screening. (ECF No. 14.)

         I. Screening Requirement

         Plaintiff was not incarcerated at the time this action was filed. Nonetheless, the in forma pauperis statute provides, “[n]otwithst anding 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).

         II. Pleading Standard

         Section 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. Assn, 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).

         To 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 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987).

         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 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. at 677-78.

         III. Plaintiff's Allegations

         Plaintiff complains of acts that occurred at North Kern State Prison (“NKSP”). He names the following defendants in their individual capacities: Warden Sandra Alfaro, Chief Medical Executive Aldukwe N. Odeluga, and Dr. S. Josh Manavi. He also names Defendant Does 1-3.

         Plaintiffs allegations may be summarized essentially as follows:

On January 14, 2014, while in the custody of the Los Angeles County Jail, Plaintiff underwent facial reconstruction surgery at Los Angeles County Medical Center. On April 15, 2014, Plaintiff was diagnosed with entropion to his lower left eyelid, a surgical complication that causes the eyelid to turn inward and the eyelid and eyelashes to irritate the eye. Plaintiff experienced pain, redness, discomfort, irritation, discharge, and tearing in the left eye, as well as pain in the left eye socket and left cranial area.
On May 8, 2014, Plaintiff was transferred to NKSP with his entropion unresolved. On May 15, 2014, he was evaluated by non-party Dr. Le. Dr. Le recorded a detailed medical history and ordered Plaintiff's medical records. He also began the process of referring Plaintiff for treatment of the entropion.
On May 22, 2014, Plaintiff was seen in consultation by non-party Dr. Yaplee at Triangle Eye Institute in Delano, California. On May 29, 2014, Dr. Yaplee recommended referral to an ocular surgeon.
On June 19, 2014, Plaintiff was evaluated via telemedicine by non-party Dr. Kitt, an otolaryngologist. Dr. Kitt recommended ...

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