The opinion of the court was delivered by: Jennifer T. Lum United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND
On November 19, 2007, Elbert Thomas Martin ("plaintiff"), proceeding pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. Section 1983 ("Complaint") in the United States District Court for the Eastern District of California. On June 20, 2008, the District Court for the Eastern District issued an order transferring the claims arising in this judicial district to this Court.
On July 11, 2008, the Court dismissed the Complaint, with leave to amend, pursuant to the screening provisions of the Prison Litigation Reform Act of 1995 ("PLRA"). On August 13, 2008, plaintiff filed a First Amended Complaint. The Court dismissed the First Amended Complaint, with leave to amend, on September 8, 2008. Plaintiff filed a Second Amended Complaint on October 24, 2008.
In accordance with the terms of the Prison Litigation Reform Act of 1995 ("PLRA"), the Court has screened the Second Amended Complaint before ordering service to determine whether the action (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See
28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1).
The Court's screening of plaintiff's Second Amended Complaint under the foregoing statutes are governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) the plaintiff fails to state a cognizable legal theory or (2) the plaintiff has alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Because plaintiff is appearing pro se, the Court must construe the allegations of the Complaint liberally and must afford plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Moreover, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
After careful review and consideration of the Second Amended Complaint under the relevant standards, and for the reasons discussed below, the Court finds that plaintiff has failed to state a claim upon which relief may be granted and ORDERS the SECOND AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND.
ALLEGATIONS OF THE SECOND AMENDED COMPLAINT
Plaintiff's claims arose while he was incarcerated at the California Men's Colony ("CMC") in San Luis Obispo, California. (Second Amended Complaint ¶ 1). Plaintiff asserts claims against the following defendants in their individual capacities: John Doe No. 3, correctional sergeant; John Doe No. 4, correctional officer; John Doe No. 5, correctional officer; T. Cook, facility captain; S. Stack, chief psychiatrist; Dr. Donald A. Ramberg; Dr. Robert Meyers, health care manager; D.L. England, correctional officer; and B.G. Dieball, correctional sergeant.
(Second Amended Complaint, Parties, ¶¶ 1-9). Plaintiff also asserts claims against Dr. Meyers in his official capacity. (See Second Amended Complaint, Parties, ¶ 7, Relief, at 14).
Plaintiff alleges that he was transferred to CMC on November 27, 2006. (See Second Amended Complaint ¶ 1). Plaintiff was placed in administrative segregation because he was suspected of manipulating the locking bar mechanism of his cell door at the California Training Facility ("CTF"). (Id., Exh. A). Upon arrival, plaintiff was interviewed by Dr. Viggianelli. (See id. at ¶¶ 2, 3). Dr. Viggianelli reviewed plaintiff's medical chart and saw that plaintiff was scheduled to have back surgery within two weeks, and issued plaintiff a "chrono" for a "lower bunk/lower tier" housing assignment. (Id. at ¶ 3, Exh. B).
On November 28, 2006, at 6:00 p.m., plaintiff asked to see a psychiatric technician. (Id. at ¶ 4). The psychiatric technician arrived at plaintiff's cell half an hour later, and asked plaintiff, "What seems to be the problem[?]" (Id.). Plaintiff responded, "I don't know what the hell I'll do." (Id.). Plaintiff was then handcuffed and taken to the psychiatric ward, along with his medical files. (Id. at ¶¶ 4, 5). Plaintiff alleges that he was on "CCCMS-status" from 2002 to 2006 and was taking medication for depression. (Id. at ¶ 4). According to plaintiff, his medical file included information that he had been prescribed medication for his bulging disc pain in his lower back, asthma, and high blood pressure. (See id. at ¶ 4, Exh. C).
Upon arrival at the psychiatric ward, plaintiff was placed in a cell while his medical records were reviewed by defendant Stack, the chief psychiatrist. (Id. at ¶ 6). Plaintiff alleges that, before patients are admitted to the psychiatric ward, their medical records are reviewed to assess mental needs, such as possible depression or re-lapse, as well as physical needs by way of chronos. (Id.).
Plaintiff was then told to take off all of his clothes and that he would have to sleep on the upper bunk, without his clothes, a mattress, or a blanket for the next 72 hours. (Id. at ¶ 7). Plaintiff then asked to see defendant Stack. (Id.). Plaintiff was told that defendant Stack had already reviewed plaintiff's medical chart and would see plaintiff only after a 72-hour observation period, and not to "get upset, because the doctor has already seen your records." (Id. at ¶¶ 7, 8).
Over the next 72 hours, plaintiff complained that his right testicle and right leg had swollen because he had been sleeping on bare metal without any blankets or clothes, and had not received any of his medications. (Second Amended Complaint ¶ 9).
On December 2, 2006, plaintiff told a staff nurse that he was hearing voices and wanted to see a doctor. (Id. at ¶¶ 10, 12). An officer standing next to the nurse informed plaintiff that he would be seeing the "psych. committee in a little while, so just hang in there." (Id. at ¶ 11). Plaintiff was taken to see the psychiatric committee, headed by defendant Stack, that day. (Id. at ¶ 12). Defendant Stack told plaintiff that he felt plaintiff was "O.K. at this point" and would be returned to administrative segregation, where he would be subject to hourly observation for the next ten days, i.e., every hour, on the hour, plaintiff would have to show a correctional officer some type of physical movement. (Id.). Plaintiff told defendant Stack that he was hearing the same voices he had heard around September 2002, and that he was suffering from depression caused by being accused of committing a crime at the CTF. (See id. at ¶ 13, Exh. D).
Plaintiff was then taken to an administrative segregation cell, where he informed defendants John Doe Nos. 3, 4, and 5 that he was a devout Muslim and required a Holy Quran, a towel to use as a prayer rug, because the cell floor was too dirty to pray on, and a kosher meal, or a peanut butter and jelly sandwich, because he did not eat meat. (Id. at ¶ 14). Plaintiff informed the officers that, if they checked plaintiff's central file, they would see that plaintiff was a registered Muslim and had a kosher meal card. (Id. at ¶ 14, Exh. E). Later in the day, defendants John Doe Nos. 4 and 5 brought plaintiff his evening meal, and plaintiff saw defendant John Doe No. 4 spit in the food. (Id. at ¶ 15). Defendant John Doe No. 5 told plaintiff to take the food tray, and plaintiff responded, "Not after you just spit in it." (Id.). Defendant John Doe No. 4 said, "Sure I did." (Id. at ¶ 16). Plaintiff asked to speak to the sergeant, defendant John Doe No. 3, who arrived a half hour later. (Id.). When asked what the problem was, plaintiff told defendant John Doe No. 3 that one of his officers had spit in his food tray, and that he was given a "meat tray" even after he advised the officers that he did not eat meat. (Id.). Plaintiff asked for a complaint form and defendant John Doe No. 3 said he would look into it, but plaintiff never saw defendants John Doe Nos. 3, 4, or 5 again. (Second Amended Complaint ¶ 16).
On December 7, 2006, plaintiff appeared before the Institutional Classification Committee ("ICC"). (Id. at ¶ 17, Exh. D). Defendant Captain T. Cook asked plaintiff why he was there, and told plaintiff that plaintiff's cellmate had already told the staff at the CTF that plaintiff had nothing to do with what had taken place in his cell because plaintiff was on the yard when the cell door mechanism had been compromised. (Id. at ¶¶ 18-19, Exh. D). Plaintiff said that he had been transferred for something that his cellmate had done, he never had a chance to tell his side of the story or produce witnesses on his behalf, or give a written statement before he was transferred. (Id. at ¶ 20). Plaintiff said that other inmates had seen him as a role model inmate and an upstanding Muslim, but had seen him in handcuffs, and that he had been put through shameful and inhumane treatment since being transferred to CMC, such as correctional officers spitting in his food, being assigned to an upper bunk when he was scheduled for major back surgery, having his religion demeaned, and being "taken out of a place where I was programming," just to be told that he had been cleared of all charges and that he wold be dropped "from a level two points, to a level one." (Id.). Plaintiff said that he had not been able to call his loved ones to let them know what was going on, because he had been moved six times since his arrival at CMC on November 26, 2007. (See id.). Plaintiff said that he never should have been sent to CMC in the first place, and was sent there under a false allegation, and asked to leave. (Id.). Plaintiff was taken back to his cell, but remained in administrative segregation for six more days. (Id. at ¶ 21).
On December 13, 2006, defendant correctional officer England came to plaintiff's cell and told him that he had to get ready to go to the hospital for his back surgery. (Id. at ¶ 21). Defendant England told plaintiff to strip down, so he could put on a paper jumpsuit, and plaintiff complied. (Id.). Plaintiff inquired about the safe-keeping of his legal papers, and defendant England told him that his cell would be left open for three or four days until he returned, and to leave them in the cell. (Id. at ¶ 22). Plaintiff said that he would not be returning to that cell and that his legal work contained information regarding the names, places, cells, and his experiences since he had been at CMC, which he would use to file a lawsuit. (See Second Amended Complaint ¶ 22). Defendant England then told plaintiff to place his legal papers in a plastic bag, which he provided to plaintiff. (Id. at ¶ 23). Plaintiff placed the papers in the bag and tried to give it to defendant England, but defendant England refused to take it and directed plaintiff to leave it on the bookshelf. (Id.). Plaintiff did so, and was escorted out of the cell and transported to the hospital. (Id.). The staff was subsequently unable to locate plaintiff's legal papers. (See id., Exh. F; see also id. at ¶¶ 57, 58, Exh. Z).
Plaintiff arrived at Sierra Vista Hospital around 10:00 a.m. on December 13, 2006, and was admitted and seen by defendant Dr. Ramberg. (Id. at ¶ 23, Exhs. G, H). Dr. Ramberg asked plaintiff if he was ready for surgery, and plaintiff said that he was not sure and hoped he would wake up and be able to walk. (Id. at ¶¶ 23, 24). Dr. Ramberg told plaintiff that he would only be going in on the right side of his back and look around and clean up some things, because the M.R.I. indicated that was where his disc was protruding, and that plaintiff would be fine and would not need surgery again. (Id. at ¶¶ 26, 29, Exh. I). Three or four hours after the surgery, Dr. Ramberg came in to see plaintiff and asked how he felt. (Id. at ¶ 27). Plaintiff asked Dr. Ramberg, "Why is my left leg killing me[?]" and explained that he felt pain coming from the left side of his back, down his left leg and to his left foot. (Id.). Dr. Ramberg then told plaintiff that, during the surgery, he had gone in on plaintiff's left side and looked around, and then moved to plaintiff's right side. (Id. at ¶ 28, Exh. J). Dr. Ramberg told plaintiff that he felt plaintiff needed a second surgery to fuse his disc; he did not fuse the disc during the first surgery because he needed plaintiff's consent, it was not life threatening, and they would wait to see how plaintiff healed. (Id. at ¶ 28). Plaintiff told Dr. Ramberg that he thought he would only need one surgery, and that he had never felt pain on his left side, but now his left side was just as bad as his right side. (Id. at ¶ 30). Dr. Ramberg told plaintiff, "It's just compensating for the other side[.] Don't worry[,] it will get stronger, just continue on your home medications and I will see you in 30-days[.]" (Id. at ¶ 31). On December 15, 2006, plaintiff was discharged from the hospital with a back brace and medication prescribed by Dr. Ramberg. (Id. at ¶¶ 32, 33, Exhs. K, L). Plaintiff has not seen Dr. Ramberg since the surgery. (Id. at ¶ 31).
Plaintiff was taken back to CMC and was admitted to the CMC hospital where Dr. Perry examined plaintiff and asked him why Dr. Ramberg had operated while plaintiff was suffering from lesions in his mouth, and suffered from asthma. (Second Amended Complaint ¶¶ 34, 35, Exh. M). Dr. Perry said that he would have waited at least until plaintiff's lesions had healed. (Id. at ¶ 35).
Plaintiff saw Dr. Perry again, on December 18, 2006, complaining about the unbearable pain running from his lower back, down his left leg. (Id. at ¶ 36, Exhs. N, P). Dr. Perry continued plaintiff's pain medication and told plaintiff to continue to use his walker. (Id. at ¶ 37, Exh. O). Plaintiff was also seen by the physical therapist on December 18, 2006, and continued to complain about the severe pain in his left leg. (Id. at ¶ 38).
On December 19, 2006, plaintiff was assigned to housing in a level-3 yard. (Id. at ¶ 39). Plaintiff informed the desk correctional officer that the administrative segregation committee told him he would be housed on the level-1 yard. (Id. at ¶ 40). On December 26, 2006, plaintiff filed a "Reasonable Modification or Accommodation Request" under the Americans with Disabilities Act ("ADA"), describing his disability as "chronic back pain" and "left leg has pain running down from hip to feet (back surgery)," and requesting a walking cane and a double or egg crate mattress. (Id. at ¶ 41, Exh. Q). Plaintiff submitted his request to defendant Dr. Meyers. (Id. at ¶ 51).
On February 13, 2007, plaintiff received notice that his appeal regarding his lost legal papers had been denied by defendant correctional sergeant B.G. Dieball. (Id. at ¶ 43, Exhs. F, R). Plaintiff alleges that his requests for informal and formal level review were bypassed without review. (Id. at ¶ 43).
On February 20, 2007, plaintiff was transferred to the California Correctional Institution in Tehachapi, California ...