The opinion of the court was delivered by: Gary S. Austin 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 RESPONSE DUE WITHIN 30 DAYS
Plaintiff Phillip T. Ricker ("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 was incarcerated at Corcoran State Prison at the time the events in his complaint took place. Plaintiff is suing under section 1983 for the violation of his rights under Eighth Amendment. Plaintiff names Dr. Moon, Dr. Kim, Dr. Dhah, Dr. Wang, Tellorbes, E. Lopez, Alaape, LaVann, Hicks, Lambert, D. Stinger, and Anderson as defendants. For the reasons set forth below, the Court finds that Plaintiff's complaint states some cognizable claims. Plaintiff will be ordered to either file an amended complaint that cures the deficiencies in his non-cognizable claims, or notify the Court that he is willing to voluntarily dismiss the non-cognizable claims and proceed only on the claims found to be 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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain 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). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff alleges that he suffers from an injury to his right shoulder. Plaintiff contends that the shoulder causes pain that is so intense that he cannot sleep. Plaintiff alleges that he was cleared to receive medial treatment from inmate appeals that were granted on four separate occasions. Plaintiff alleges that Defendants Moon, Kim, Dhah and Wang were fully aware of Plaintiff's need for an MRI and surgery on his right shoulder, but failed to provide the necessary treatment.
On July 5, 2009, Plaintiff informed Defendant Tellorbes that he was in excruciating pain and he needed to see a doctor. Tellorbes denied Plaintiff's request. An hour later, Plaintiff yelled man down in his cell and Defendant Anderson made a derogatory remark and left Plaintiff in pain. Thirty minutes later, Tellorbes returned to the housing unit. Plaintiff's vitals were taken. Plaintiff alleges that his vitals were "extremely high" and he should have been seen by a doctor. Instead, Defendant Hicks refused to admit Plaintiff into the E.R. at the prison.
On July 6, 2009, Plaintiff informed Defendant E. Lopez that he was in excrutiating pain.
Plaintiff's vitals were taken again. Defendant Stinger told Lopez that Plaintiff was faking it.
On July 7, 2009, Plaintiff told Defendant LaVann that he was in so much pain that it was bringing tears to his eyes. Plaintiff was refused treatment. Later that day, Plaintiff told Defendant Alaape that he was having chest pains. Defendant Lambert came to Plaintiff's cell and asked Plaintiff if he was having chest pain. Plaintiff replied "yes." Stinger then told Alaape to not provide treatment.