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Dollar v. Gutierrez

United States District Court, D. Nevada

July 9, 2014

CHRISTOPHER ADAM DOLLAR, Plaintiff,
v.
BEN GUTIERREZ, et al., Defendants.

ORDER

ROBERT C. JONES, District Judge.

This pro se prisoner civil rights action comes before the Court for initial review of the complaint as well as on plaintiff's motion (#1-2) for leave to file excess pages and motion (#1-3) for appointment of counsel. The Court is deferring action on the pauper application (#1) at this time.

Screening

When a "prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, " the court must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. ยง 1915A(b).

In considering whether the plaintiff has stated a claim upon which relief can be granted, all material factual allegations are accepted as true for purposes of initial review and are to be construed in the light most favorable to the plaintiff. See, e.g., Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). However, mere legal conclusions unsupported by any actual allegations of fact are not assumed to be true in reviewing the complaint. Ashcroft v. Iqbal, 556 U.S. 662 (2009). That is, bare and conclusory assertions that constitute merely formulaic recitations of the elements of a cause of action and that are devoid of further factual enhancement are not accepted as true and do not state a claim for relief. Id.

Further, the factual allegations must state a plausible claim for relief, meaning that the well-pleaded facts must permit the court to infer more than the mere possibility of misconduct:

[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).] A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id., at 557, 127 S.Ct. 1955 (brackets omitted).
.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]" - "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

Iqbal, 556 U.S. at 678.

Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519 (1972).

Plaintiff Christopher Dollar seeks damages and injunctive relief from, in their individual and official capacities, Registered Nurse Ben Gutierrez, Dr. Francisco Sanchez, M.D., and Dr. Romeo Aranas, M.D., as well as, in their official capacity, James Cox and Catherine Cortez Masto.

Plaintiff's in the main alleges deliberate indifference to his medical needs.

Placed in chronological order, the complaint alleges, inter alia, the following pertinent medical history. Nothing stated herein in summarizing the allegations constitutes a statement of fact or a finding by this Court. Plaintiff's actual factual allegations, but not his conclusory or formulaic allegations, are assumed to be true for purposes of this review only.

On and after August 4, 2011, plaintiff "complained of various medical issues starting with lumps in [his] chest area as well as complications in both knees." Dr. Sanchez saw him seven times at Southern Desert Correctional Center thereafter through October 31, 2012.[1]

Following a December 21, 2011, examination, Dr. Sanchez told plaintiff that he was working out too much. Plaintiff sought to follow the physician's advice for the next six months, but his symptoms continued to worsen, with pain in his shoulder and upper right back, chest lumps, knee trouble, and swelling in his left foot.

At an August 8, 2012, examination, Dr. Sanchez told plaintiff that he was taking a large amount of ibuprofen and acetaminophen, which plaintiff asserts can cause liver and kidney problems over long periods of time. It appears from the complaint that nurses were providing the ibuprofen and acetaminophen as they could not authorize more. Plaintiff alleges that Dr. Sanchez "made no real effort to prescribe any real anti-inflammatory medication."

On September 26, 2012, a female doctor who is not a defendant herein examined plaintiff. Plaintiff alleges that the doctor "conducted various testing... to help in diagnosing his complications." Plaintiff otherwise refers to this visit only with regard to what defendant Nurse Gutierrez allegedly said to plaintiff afterwards, which is discussed further, infra.

At a November 29, 2012, examination, Dr. Sanchez x-rayed plaintiff's knee for the first time and prescribed naproxen.

At an examination on or about March 14, 2013, Dr. Sanchez ordered that plaintiff be given joint balm and a knee brace, prescribed naproxen and a Tylenol pack, and scheduled ...


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