United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM
(ECF No. 16)FOURTEEN-DAY DEADLINE
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE.
Charlie Rodriguez (“Plaintiff”) is a California
state prisoner proceeding pro se and in forma pauperis in
this civil action pursuant to 42 U.S.C. § 1983. On
November 8, 2016, the Court dismissed Plaintiff's first
amended complaint with leave to amend. (ECF No. 15.)
Plaintiff's second amended complaint, filed on December
9, 2016, is currently before the Court for screening.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (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, 129
S.Ct. at 1949 (quotation marks omitted); Moss v. United
States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
The sheer possibility that a defendant acted unlawfully is
not sufficient, and mere consistency with liability falls
short of satisfying the plausibility standard.
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation
marks omitted); Moss, 572 F.3d at 969.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
is currently housed at the California Correctional
Institution in Tehachapi, California. The events in the
complaint are alleged to have occurred when Plaintiff was
housed at Kern Valley State Prison. Plaintiff names Dr.
Palmero as the sole defendant in this action. The crux of
Plaintiff's complaint is that he was denied adequate
medical care for a partial tear of his supraspinatus tendon
and degenerative changes in his right shoulder.
alleges the following. On June 4, 2012, Plaintiff submitted a
medical 7362 form complaining of chronic right shoulder pain.
On June 14, 2012, Plaintiff had x-rays done on his right
shoulder. On August 23, 2012, Plaintiff was seen by Defendant
Palmero, who read the x-rays and “concluded that
nothing was wrong and everything was fine.” (ECF No. 16
at ¶ 6.)
October 25, 2012, Plaintiff was again seen by Dr. Palmero who
stated that Plaintiff had a small tear and signs of over
usage on his right shoulder, which was based on an October
2012 MRI. (Id. at ¶¶ 8, 9 and pp. 18, 22.)
Dr. Palmero stated that Plaintiff's shoulder injury could
not be fixed without surgery, but he refused to recommend
surgery due to budget shortages. (Id. at ¶ 8.)
Instead, Dr. Palmero prescribed medication and referred
Plaintiff to physical therapy. (Id. at ¶¶
8, 9.) Physical therapy was discontinued due to no
improvement. (Id. at ¶ 9.)
further alleges as follows:
10. Dated 03-27-2014, Physician Request for Service document
shows: that plaintiff needs physical therapy.
11. Dated 06-24-2014, physician Request for [Service]
document shows: that cortisone injection is recommend[ed].
12. Dated 07-21-2014, Valley [Orthopedic] Institute document
shows: that cortisone ...