The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM OBJECTIONS, IF ANY, DUE IN 30 DAYS (Doc. 15.)
I. RELEVANT PROCEDURAL HISTORY
Plaintiff Michael Louis Foster ("plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation, and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 3, 2008. The Court screened Plaintiff's complaint under 28 U.S.C. § 1915A and issued an order on March 30, 2009, dismissing the complaint for failure to state a claim with leave to amend. (Doc. 10.) On May 15, 2009, Plaintiff filed the First Amended Complaint. (Doc. 15.) On July 31, 2009, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 16.) On September 13, 2009, plaintiff filed the Second Amended Complaint, which is now before the Court. (Doc. 21.) Plaintiff has also filed a motion for preliminary injunctive relief, in which he requests the court to order prison officials to immediately prescribe Metamucil for treatment of his medical condition. (Doc. 22.)
II. SCREENING REQUIREMENT
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 conclusions are not. Id. at 1949.
III. PLAINTIFF'S ALLEGATIONS
Plaintiff, who is currently incarcerated at the California Substance Abuse Treatment Facility and State Prison in Corcoran ("CSATF"), brings this action for inadequate medical care in violation of the Eighth Amendment of the United States Constitution. Plaintiff alleges that he has had constipation since 2006 when doctors changed his prescription from Metamucil. Plaintiff alleges that he has not been provided with appropriate medical care for his ailment, and has been left to suffer in pain, despite his attempts to secure treatment by seeing doctors and a doctor's assistant. Plaintiff names as defendants Dr. A. Enenmoh (Chief Medical Officer), Physician's Assistant Jean-Pierre, and Dr. S. Raman.
Plaintiff alleges in the Second Amended Complaint as follows.
In 2006, plaintiff was taking Metamucil for his constipation problems, which worked well. At the end of 2006, plaintiff requested a refill, and although Dr. Enenmoh says he prescribed Metamucil, plaintiff was given fiber tablets instead, which did not work. Plaintiff returned to Dr. Enenmoh and told him the fiber tablets did not work and the constipation was worse. Dr. Enenmoh told plaintiff he could not prescribe Metamucil anymore because it was "nonformulary" and continued prescribing fiber tablets. Plaintiff's constipation became worse and he complained to Dr. Enenmoh about stomach pains, pain in his hernia area and rectum from straining, and going without a bowel movement for 3 to 4 days at a time. Dr. Enenmoh continued to refuse to prescribe Metamucil, told plaintiff to continue with the fiber tablets, and also prescribed Milk of Magnesia. Plaintiff returned to Dr. Enenmoh and told him the Milk of Magnesia caused diarrhea, but then the constipation would continue. Dr. Enenmoh told plaintiff to take more fiber tablets, but plaintiff's abdominal pain and the constipation worsened. Dr. Enenmoh prescribed fiber tablets and stool softener, and antibiotics for the flank pain. Plaintiff's flank pain worsened, and the constipation and other pains continued. Dr. Enenmoh ordered x-rays, an ultrasound, a CT scan, and arranged for plaintiff to see a urologist.
Plaintiff returned to Dr. Enenmoh on December 5, 2007, for results of the tests and was told that he had kidney stones and should continue taking fiber tablets for constipation. Plaintiff told Dr. Enenmoh that the directions on the fiber tablets said to stop taking them if you have abdominal pain, but Dr. Enenmoh said the fiber tablets were not the cause of his pain, and it was okay to continue taking them. Plaintiff again asked for Metamucil but was refused. Plaintiff's symptoms continued.
On February 15, 2008, plaintiff saw Physician's Assistant Jean-Pierre. Plaintiff explained his history of constipation and pain, and he told Jean-Pierre that the Milk of Magnesia, Docusate Sodium, and fiber tablets did not work, but Metamucil does work. Jean-Pierre prescribed Lactulose, a medication for people who have hepatitis, not constipation. The Lactulose gave plaintiff extreme diarrhea and caused him to have accidental bowel movements in his undershorts, and the constipation continued. On March 14, 2008, plaintiff returned to Jean-Pierre and told him about his symptoms. Jean-Pierre prescribed Docusate Sodium, even though plaintiff told him it doesn't work. The constipation and pain continued.
On June 18, 2008, plaintiff saw Dr. S. Raman and explained about his history of pain and constipation. Dr. Raman reviewed plaintiff's medical file and acknowledged the CT Scan, x-ray, ultrasound, and kidney stones. Dr. Ramen prescribed fiber tablets and Milk of Magnesia, even though plaintiff explained they don't work. Dr. Ramen told plaintiff to take more of the fiber tablets and to try chewing them. Plaintiff told Dr. Ramen about the instructions on the bottle of fiber tablets that said to stop taking the tablets if you experience abdominal pain. Dr. Ramen told plaintiff the fiber tablets were not the cause of his pain and he should continue taking them. Plaintiff's constipation and pain continued.
In July 2008, plaintiff noticed a lump on his neck which turned out to be a tumor. Plaintiff believes the tumor was caused by a build-up of fecal ...