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Ramirez v. Baniga

United States District Court, E.D. California

June 27, 2017

CARLOS RAMIREZ, Plaintiff,
v.
U. BANIGA, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF (ECF No. 7) THIRTY-DAY DEADLINE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF No. 5.)

         Currently before the Court for screening is Plaintiff's first amended complaint, filed October 24, 2016. (ECF No. 7.)

         I.

         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 on which relief may be granted, ” or that “seek monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff is currently in the custody of the California Department of Corrections and Rehabilitation (“CDCR”) at the California Correctional Institution in Tehachapi, California (“CCI”) where the events at issue in this action occurred. Plaintiff names as defendants the following individuals: (1) U. Baniga, Chief Physician and Surgeon at CCI; S. Shiesha, Chief Medical Executive at CCI; and (3) J. Lewis, Policy & Risk Management Services - Health Care, for the CDCR. Plaintiff alleges the following:

         On or about 2012, Plaintiff injured his back and was prescribed medications that damages the liver. Plaintiff has been living with Hepatitis C for over 15 years. In December 2015, Plaintiff met with his health care provider and requested further tests and treatment, and that request was denied. Plaintiff filed an inmate appeal to the highest level, and was denied.

         Plaintiff is a chronic care inmate with Hepatitis C infection. Defendant Baniga was acting under color of law when he denied Plaintiff further testing and treatment for Hepatitis C. Defendant Baniga showed deliberate indifference to Plaintiff's medical needs by not providing proper medical care, by not ordering blood tests and a liver scan to determine what stage the virus was in, and provide treatment. Defendant Baniga's deliberate indifference to Plaintiff's medical needs violates Plaintiff's Eighth Amendment rights and Fifth Amendment rights to due process.

         Defendant Shiesha was acting under color of law by denying Plaintiff further testing and treatment for Hepatitis C. Defendant Shiesha reviews medical complaints at the second level, and denied Plaintiff's request for treatment, showing deliberate indifference for Plaintiff's medical needs. Defendant Shiesha did not provide proper medical care by failing to order blood tests and liver scans to determine what stage the virus is in, and provide treatment. Defendant Shiesha violated Plaintiff's Eighth Amendment rights and Fifth Amendment rights to due process.

         Plaintiff already had a blood test. However, to determine what treatment is required for Hepatitis C, a blood test is done for HIV, and then a liver scan is done. This is what Plaintiff is asserting that the defendants ...


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