United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM [ECF NO.
James Carl Kelly is a state prisoner proceeding pro se in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court for screening is Plaintiff's complaint,
filed on January 3, 2018. (ECF No. 1.)
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).
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
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
names Dr. Wayne Elit as a defendant, a medical doctor at Kern
Valley State Prison, where the events at issue are alleged to
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.
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.)
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.
Eighth Amendment Deliberate Indifference
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 ...