United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF ALL CLAIMS AND DEFENDANTS (ECF NO. 18) OBJECTIONS, IF ANY,
DUE WITHIN TWENTY-ONE (21) DAYS ORDER DIRECTING CLERK TO
ASSIGN DISTRICT JUDGE
Calderon (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. §
1983. Plaintiff filed the complaint commencing this action on
November 20, 2018. (ECF No. 1). The Court screened the
complaint, finding no cognizable claims and giving Plaintiff
leave to amend, on October 7, 2019. (ECF No. 17). Plaintiff
filed a First Amended Complaint (“FAC”) on
October 18, 2019. (ECF No. 18). Plaintiff generally alleges
that he was misdiagnosed as having gout for years, while the
correct diagnosis was myopathy.
Court has reviewed the FAC and recommends dismissing the FAC
without leave to amend. Plaintiff may file objections to
these findings and recommendations within twenty-one days of
the date of service of this order, which will be reviewed by
the district judge.
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). As Plaintiff is proceeding in forma
pauperis (ECF No. 6), the Court may also screen the
complaint under 28 U.S.C. § 1915. “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 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)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id.
(quoting Twombly, 550 U.S. at 570). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. 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). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT
claims that while incarcerated at Salinas Valley State Prison
(“SVSP”), he was medically treated for gout over
a range of nine years. However, there was no evidence of
Plaintiff having gout and newer examinations showed this was
a misdiagnosis by Defendant Magdy on August 13, 2009. On May
11, 2018, Rheumatology confirmed the misdiagnosis and
determined that Plaintiff is actually suffering from
spent about five years in SVSP. He was seen there by
Defendant Dr. Danials Magdy and Defendant Dr. Lawrence
Gamboa. Plaintiff always told them that he was losing
strength and mobility. About a year later he was told that he
had “gout.” Plaintiff believed them. Later, when
Plaintiff educated himself about gout, he learned that his
symptoms were not related to gout. His feet, legs, and right
big toe never got inflamed. Plaintiff told Defendant Dr.
Magdy and Defendant Dr. Gamboa that perhaps his disease or
condition was something else. Plaintiff was also misdiagnosed
with left ankle pain.
started taking Allopurinol for gout. His health got worse.
Plaintiff told his doctors he could not run or jump. On
January 31, 2009, and May 9, 2010, Plaintiff kept complaining
March 8, 2010, Plaintiff “was misdiagnosed with
‘chronic arthitis [sic]' and that ‘gout'
was normal.” But his doctors kept telling him that he
March 22, 2011, Plaintiff told Defendant Dr. Gamboa that he
still had pain.
9, 2011, Defendant Dr. Gamboa found out that Plaintiff had
many bacteria, yet he never told Plaintiff about the
January 18, 2012, Plaintiff submitted a CDC 7362 form,
stating that he had shortness of breath and that on two
occasions he almost passed out.
August 28, 2012, Defendant Dr. Gamboa knew that
Plaintiff's uric acid was in range, but kept telling
Plaintiff that he had gout.
September 9, 2012, Plaintiff submitted another CDC 7362 form,
stating that all he wanted was to sleep, and that he was
feeling very feeble. His doctors kept telling him that this
was due to the gout.
October 8, 2012, on a request form 22, Plaintiff told
Defendant Dr. Gamboa that he did not care about Plaintiff.
Plaintiff told Defendant Dr. Gamboa that if he gets sicker,
and he finds out the Dr. Gamboa was aware but did not do
anything, he would sue Dr. Gamboa.
March 3, 2013, Plaintiff requested the assistance of a
note dated March 14, 2013, Plaintiff stated that he did ...