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Kelly v. Elit

United States District Court, E.D. California

May 7, 2018

JAMES CARL KELLY, Plaintiff,
v.
WAYNE ELIT, Defendant.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM [ECF NO. 1]

         Plaintiff James Carl Kelly is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court for screening is Plaintiff's complaint, filed on January 3, 2018. (ECF No. 1.)

         I. SCREENING REQUIREMENT

         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 on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         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. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (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 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969

         II. COMPLAINT ALLEGATIONS

         Plaintiff names Dr. Wayne Elit as a defendant, a medical doctor at Kern Valley State Prison, where the events at issue are alleged to have occurred.

         Plaintiff alleges that on December 14, 2017, at the health services clinic, Dr. Elit explained to him that his I.N.R. level was below 2.5, and Plaintiff stated that he needed a LOVENOX® injection to bring his range to 2.5 or 3.5. However, Dr. Elit disagreed, opining that Plaintiff only needed to take Coumadin® at a dosage of 7.5 mg. Plaintiff tried to explain to Dr. Elit that due to his medical history and conditions, he can only take medications such as Coumadin® if his I.N.R. is above 2.5, otherwise he must use LOVENOX®, or he will die. Plaintiff was told by several medical doctors at CHW Central California and Mercy Hospital in Bakersfield that due to his medical status, including tiny nodules on his left lung, anemia, and Hepatitis C, he could experience lung issues and even lung cancer if he is incorrectly given Coumadin®, and that he must use LOVENOX® if needed.

         In the section of the complaint addressing Plaintiff's exhaustion of administrative remedies, Plaintiff alleges that he filed an emergency appeal, and as part of the appeal, he was granted the LOVENOX® injection that he required as a heart disease patient, as well as the Coumadin®. (Compl., ECF No. 1, at 2.)

         Plaintiff requests that he be placed under a different doctor and, if possible, that he be sent somewhere safe, as he does not feel safe at Kern Valley State. Prison.

         III. DISCUSSION

         A. Eighth Amendment Deliberate Indifference

         A prisoner's claim of inadequate medical care does not constitute cruel and unusual punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires Plaintiff to show (1) “a ‘serious medical need' by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the ‘unnecessary ...


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