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Dixon v. Lewis

United States District Court, E.D. California

November 17, 2017

DANIEL STEVE DIXON, Plaintiff,
v.
J. LEWIS, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 15)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

         Findings and Recommendations

         Plaintiff Daniel Steve Dixon (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         On September 21, 2016, the Court dismissed Plaintiff's complaint with leave to amend. (ECF No. 12.) Plaintiff's first amended complaint, filed on November 18, 2016, is currently before the Court for screening.

         I. Screening Requirement and Standard

         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).

         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 Atl. 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).

         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. U.S. 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.

         II. Allegations in First Amended Complaint

         Plaintiff is currently housed at the R.J. Donovan Correctional Facility in San Diego, California. The events giving rise to this action are alleged to have occurred while Plaintiff was housed at the Sierra Conservation Center (“SCC”) in Jamestown, California. Plaintiff names the following defendants: (1) Dr. J. St. Clair; (2) Dr. William Savage; (3) Dr. N. Ridge; and (4) Physician's Assistant (“PA”) T. Day.

         Plaintiff alleges as follows: In 2014, while at Deuel Vocational Institution (“DVI”) for out-to-court appearances, Plaintiff was examined by a doctor at DVI for severe pain in his left shoulder caused by falling to the cell floor while experiencing a seizure. He was rushed to the hospital, where he remained for a few days. Thereafter, based on restless sleep, stabbing pain in his left shoulder, and mobility issues in his left arm, Plaintiff underwent physical therapy at DVI and was prescribed morphine pain medication, without a waiver, after other pain medications were determined ineffective and discontinued.

         When Plaintiff returned to SCC, on January 26, 2015, Dr. Savage found Plaintiff's left shoulder injury severe enough to prescribe pain medication. Unlike DVI, however, Dr. Savage required Plaintiff to sign a pain management agreement. If not signed, the morphine would have been discontinued and replaced with other medication.

         On April 23, 2015, Dr. Savage again examined Plaintiff and increased his morphine pain medication from 1 tablet by mouth twice a day to 3 times a day as needed for pain.

         On May 14, 2015, Plaintiff was issued a CDCR-128-A Information Chrono for allegedly failing to swallow his prescribed medication. PA Day ordered that Plaintiff be eased off of his morphine medication for allegedly being caught ...


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