The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS AND CERTAIN DEFENDANTS(Doc. 10)
Order Dismissing Certain Claims and Defendants
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Lynn Charles Beyett ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis. On September 12, 2008, Plaintiff filed a complaint initiating this action. On July 7, 2009, the Court issued an order finding that Plaintiff's complaint states cognizable claims against Defendants O'Brien and Ragan for violation of the Eighth Amendment, but does not state cognizable state law claims nor claims against defendants Doehring, Kapoor, Shannon, Igbinosa, Hansen, Alvarez, Yates, Cate and Tilton. The Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. On August 4, 2009, Plaintiff filed a notice in response to the Court order.
In his notice, Plaintiff states that he has retained counsel, who will file Plaintiff's amended complaint.*fn1 Plaintiff further indicates that if his amended complaint is not received by the Court, Plaintiff still wishes to proceed with this action.
No amended complaint has been filed in this action. Based on Plaintiff's notice stating that he wishes to proceed in this action even if the amended complaint is not filed, this action proceeds in the original complaint filed September 12, 2008, and this order now issues.
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).
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)(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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
II. Summary of Plaintiff's Complaint*fn2
Plaintiff is currently housed at Pleasant Valley State Prison, where the events giving rise to this action allegedly occurred. Plaintiff names as defendants V. O'Brien, D. Ragan, L. Doehring, Kapoor, R. Shannon, F. Igbinosa, R. Hansen, W. Alvarez, J. Yates, J. Tilton, and M. Cate.
Plaintiff states that he takes morphine twice daily. Plaintiff states that on the morning of September 13, 2007, defendant Kapoor discontinued Plaintiff's medication based on allegations that Plaintiff had been "palming" his medication, which Plaintiff denies. Plaintiff states that later that evening defendant O'Brien refused to issue Plaintiff his morphine because his medication was discontinued. Plaintiff states that while returning to his Housing Unit he fell and injured his knee. Plaintiff was transported to the clinic, where defendant O'Brien refused to allow him to see a doctor or go to CTC despite his complaints of severe pain, and also stated that Plaintiff was faking.
Plaintiff states that defendant Ragan responded to a call for medical treatment for Plaintiff the next day. Plaintiff alleges that defendant Ragan refused to examine Plaintiff's severely swollen knee and would not allow Plaintiff to see a doctor for three days.
Plaintiff alleges that on September 17, 2007 he was reissued a CDC 7721 for his morphine, but that defendant Doehring made a notation indicating that the medication was to be discontinued if Plaintiff was caught palming medication again.
Finally, Plaintiff states that on March 12, 2008, defendant Kapoor prescribed Plaintiff Motrin for his pain. Plaintiff states that he has Hepatitis C and was informed by previous doctors that he should not take Motrin because it was harmful to the liver. Plaintiff alleges that defendant Kapoor stated "Motrin ...