The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE
RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Carlos Herrera ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Kern Valley State Prison in Delano, California. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth Amendment of the U.S. Constitution. Plaintiff names C. Hall, G. Moonga, S. Zamora, Dr. Turella, Dr. Penner, S. Lopez, M.D., L. Bluford and N. Grannis as defendants. For the reasons set forth below, Plaintiff will be given the opportunity to file an amended complaint or proceed only on the claims found cognizable in this order.
The 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). "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. § 1915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Plaintiff alleges that prison officials did not provide proper treatment for his Hepatitis C. Plaintiff informed that he had Hepatitis C in February 2003. Plaintiff underwent a series of tests to determine whether he was suitable for "combination therapy" treatment for his Hepatitis. At issue was whether Plaintiff exhibited dangerously high alanine aminotransferase ("ALT") levels that would preclude him from receiving "combination therapy" treatment. Plaintiff cites prison regulations that state Hepatitis patients who are 45 years old or younger that have elevated ALT values on three consecutive tests are not eligible for combination therapy. Plaintiff alleges that although he had received elevated ALT values on individual tests, he has never received elevated ALT values on three consecutive tests. Therefore, Plaintiff believes Defendants improperly withheld "combination therapy" treatment from Plaintiff.
Plaintiff also alleges that Defendants improperly refused to perform a liver biopsy on Plaintiff. Plaintiff cites a prison regulation that states inmate patients 45 years old or older do not require elevated ALT levels to be considered for a liver biopsy. Plaintiff contends that he was denied a liver biopsy based on his age.
Plaintiff cites other examples of how Defendants failed to comply with prison regulations. Plaintiff alleges that his ineligibility for "combination therapy" was not "thoroughly discussed", as required by prison regulations. Plaintiff also alleges that his ineligibility was not properly documented as required by regulation. Finally, Plaintiff alleges that Defendants failed to comply with regulatory timetables for Hepatitis diagnosis and treatment. Plaintiff alleges that regulations require "Phase II" of Hepatitis treatment to be completed in two months, while he has been in "Phase II" for three years.
Plaintiff also alleges that his denial for "combination therapy" was erroneously based on false reports in Plaintiff's file. Plaintiff was denied "combination therapy" based on reports that stated he had a history of schizophrenia, drug/alcohol use, anemia and hypothyroidism, among other things. Plaintiff claims that these reports actually belong to another inmate and were mistakenly placed in his file.
A. Eighth Amendment Claim - Denial of ...