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Chan v. Marciano

United States District Court, C.D. California

June 28, 2017

HOY CHAN, Plaintiff,
v.
ORRY MARCIANO, Defendants.

          MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE.

         I.

         INTRODUCTION

         On November 6, 2016, Plaintiff Hoy Chan (“Plaintiff”), a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. (“Complaint, ” Dkt. No. 1). Due to defects in pleading, the Court dismissed the Complaint with leave to amend. (Dkt. No. 5). Plaintiff subsequently filed the instant First Amended Complaint on May 12, 2017. (“FAC, ” Dkt. No. 6).

         Congress mandates that district courts perform an initial screening of complainivil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This court may dismiss such a complaint, or any portion of it, before service of process if the court concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). For the reasons stated below, the First Amended Complaint is DISMISSED with leave to amend.[1]

         II.

         ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

         Plaintiff names the following Chuckawalla Valley State Prison (“CVSP”) employees as defendants in their official and individual capacities:[2] (1) physician's assistant and “Primary Care Doctor” Orry Marciano; (2) Nurse Beatres; (3) Warden Kimberly Sibel; (4) Correctional Officer Anderson; and (5) Correctional Officer Calvillo (collectively “Defendants”). (FAC at 3-4).

         Plaintiff, a diabetic with breathing problems, alleges that Marciano discriminated against him because of his alleged disabilities. (Id. at 3, 5). Plaintiff contends that “more than a year” ago, Marciano promised Plaintiff access to an orthopedic doctor, whom Plaintiff alleges he has not yet seen. (Id. at 5). Marciano also prescribed medicine to Plaintiff that has allegedly “deteriorated [his] body.” (Id. at 3).

         Plaintiff alleges that Nurse Beatres “always denied [his] disability, ” and yelled at him to stop complaining and “take Tylenol.” (Id. at 3, 5). Plaintiff believes that, after Marciano and Beatres told the officers that Plaintiff is not disabled, Anderson and Cavillo “forced [him] to work using chemicals.” (Id. at 4). Because Plaintiff's disability was allegedly not “in the system, ” he was not excused from work and could be written up if he refused. (Id.).

         Plaintiff claims that the “severe pain” from his bunion is exacerbated by the heavy work boots he must wear. (Id. at 6). Plaintiff has attached records indicating that therapeutic shoes were prescribed to him after two infirmary visits on February 15 and 23, 2017. (Id. at 7, 14).[3] As of the filing of the First Amended Complaint, he has not received the shoes. (Id. at 6). During the February 23 visit, a cane was prescribed and a follow-up “Orthotics Referral Request” was scheduled for May 23, 2017, citing a “moderate right Bunion.” (Id. at 8). Records do not indicate which physician treated him during either visit, but Plaintiff claims that an unnamed “D Yard” doctor recommended the cane. (Id. at 5, 7, 14).

         Plaintiff alleges that Warden Sibel “knows what's going on, ” i.e., that inmates are provided with doctors and nursing staff who do not “[know] their jobs and responsibilities.” (Id. at 3). Plaintiff alleges that Sibel is also failing in her “responsibilities to inform or educate her staff” on the importance of operational procedures. (Id. at 5).

         The First Amended Complaint claims that Defendants “abused [Plaintiff's] constitutional rights” by discriminating against him in violation of the Americans with Disabilities Act. (Id. at 5-6). Defendants also allegedly inflicted cruel and unusual punishment upon Plaintiff, by forcing him to work and showing deliberate indifference to his medical needs. (Id. at 3-5). The First Amended Complaint also alleges violations of “Title 45” of the California Code of Regulations, which does not appear to exist, and claims that Sibel failed to train and supervise the Defendants. (Id. at 3, 5). Plaintiff's prayer for relief is unclear. (Id. at 6). While Plaintiff vaguely calls for “justice, ” he also appears to be seeking an injunction, demanding his prescribed therapeutic shoes and a visit to an orthopedic specialist. (Id.). Plaintiff does not request monetary damages. (Id.).

         III.

...


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