United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND (ECF, 14) THIRTY (30) DAY DEADLINE
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
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
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.
amended complaint (“FAC”) is now before the Court
for screening. (ECF No. 14.)
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. §
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).
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).
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.
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.
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
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