United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO FILE A RESPONSE (DOC.
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
has filed a complaint asserting constitutional claims against
governmental employees and/or entities. (Doc. 1.) Generally,
the Court is required to screen complaints brought by inmates
seeking relief against a governmental entity or an 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. §
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)),
and 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). While factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
may bring § 1983 claims against individuals acting
“under color of state law.” See 42
U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii).
Under § 1983, Plaintiff must demonstrate that each
defendant personally participated in the deprivation of his
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). This requires the presentation of factual
allegations sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). 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), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
is a state inmate housed at Central California Women's
Facility in Chowchilla, California. Plaintiff brings this
action against Dr. Ravi D. Rao, a CCWF contracted surgeon;
Warden J. Espinosa; and John Doe, CCWF Chief Medical Officer.
Plaintiff seeks damages, declaratory relief, and injunctive
allegations may be fairly summarized as follows:
February 12, 2018, Dr. Rao performed a surgical procedure on
Plaintiff's head and forehead. During the procedure, Dr.
Rao made three cuts and sent tissue samples to a nearby lab
while Plaintiff remained in the examination room with the
instruments. After the lab confirmed that they had what they
needed, Dr. Rao returned to the operating room to complete
the procedure. However, he did not sterilize the instruments
or use new ones.
February 16, 2018, Plaintiff experienced a severe migraine,
her temperature rose, and the wound on her head opened. She
was admitted to the hospital for sepsis where she was given
increased fluids and Rocephin. There, her temperature
returned to normal, and hospital staff changed her dressing
every four hours. On February 18, 2018, Plaintiff was
returned to her housing unit and continued the prescribed
regiment. The wound finally closed in July 2018.
continues to suffer daily headaches, which she reported to
her primary care provider, Dr. Loadlholt. When Dr. Loadlholt
contacted Dr. Rao to state how “unhappy” she was
and asked what happened to Plaintiff, Dr. Rao's office
hung up on Dr. Loadlholt.
brings this suit for negligence and violation of her Eighth
Amendment rights based on Dr. Rao's performance of a
procedure in an unsterile environment with unsterile