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Garbarini v. Mendivil

United States District Court, E.D. California

February 22, 2018

D. MENDIVIL, et al., Defendants.



         I. BACKGROUND

         Ralph Garbarini (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 10, 2017. (ECF No. 1.) The court screened the Complaint and issued an order on October 3, 2017, dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 14.) On November 1, 2017, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (ECF No. 15.)


         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 upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint is required to 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)). 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 state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.


         Plaintiff is presently incarcerated at Valley State Prison in Chowchilla, California. The events at issue in the First Amended Complaint allegedly occurred at Corcoran State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there in the custody of the California Department of Corrections and Rehabilitation. Plaintiff names as defendants D. Mendivil (R.N.), R. Gill (M.D.), C. Ogbuehi (Physician's Assistant), McCabe (M.D.), and U. Williams (Health Care Appeals Coordinator) (collectively, “Defendants”).

         Plaintiff's allegations follow. Plaintiff suffers severe chronic pain caused by a non-repairable massive tendon tear in his right rotator cuff, degenerative disc disease and progressive arthritis in his right knee.

         Plaintiff's degenerative disc disease was initially diagnosed in February 2009 by his physician at Salinas Valley State Prison (SVSP), who told Plaintiff his spine x-ray showed fairly severe degenerative disc disease.

         Plaintiff's arthritis was initially diagnosed by his physician at SVSP in May 2011, using an x-ray. The arthritis pain has increased over the years. On November 21, 2013, Dr. Clark [not a defendant] at CSP told Plaintiff he suffered from progressive arthritis in his right knee. Dr. Clark recommended cortisone injections instead of a knee replacement because of the high risk of complications with knee replacements. Dr. Clark gave Plaintiff a cortisone injection in his right knee. Plaintiff wears a knee brace that provides support and reduces pain when he walks.

         Plaintiff's tendon tear in his rotator cuff was diagnosed during rotator cuff surgery on July 11, 2013, at CSP. The surgery notes state that the cuff tear was massive, had re-ruptured, and was non-repairable.

         On February 25, 2016, Plaintiff submitted a health care services request form stating that he continues to suffer severe chronic pain caused by his massive tendon tear, degenerative disc disease, and progressive arthritis in his right knee.

         On February 26, 2016, Plaintiff saw defendant Nurse Mendivil. Plaintiff described his pain symptoms. Nurse Mendivil stated that Plaintiff was already scheduled to see a primary care physician soon.

         On March 10, 2016, Plaintiff saw defendant, Dr. Gill, and explained his symptoms. Plaintiff requested Dr. Gill to provide him with effective treatment for the pain. Dr. Gill stated that Plaintiff's pain was being treated with Ibuprofen. Plaintiff stated that the Ibuprofen was not effectively treating his pain. Dr. Gill responded by stating that Ibuprofen was going to have to do, Plaintiff was not getting anything stronger, and Plaintiff will just have to learn to live with the ...

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