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Rodriguez v. Palmero

United States District Court, E.D. California

November 17, 2017

CHARLIE RODRIGUEZ, Plaintiff,
v.
PALMERO, M.D., et al., Defendants.

          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.

         Plaintiff 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.

         A. SCREENING REQUIREMENT

         The 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).

         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, 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).

         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. 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.

         B. SUMMARY OF PLAINTIFF'S ALLEGATIONS

         Plaintiff 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.

         Plaintiff 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.)

         On 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.)

         Plaintiff 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 ...

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