The opinion of the court was delivered by: Gary S. United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND ORDER FOR CLERK TO SEND PLAINTIFF A § 1983 COMPLAINT FORM THIRTY DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT
I. RELEVANT PROCEDURAL HISTORY
Plaintiff Miguel A. Jimenez ("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 filed this action on August 16, 2007. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on December 29, 2008, finding that Plaintiff stated cognizable claims for inadequate medical care under the Eighth Amendment against defendants Wenciker, Nocye, O'Brien, and Tate ("Defendants"), and directing the United States Marshal to serve process. (Doc. 15.) On May 26, 2009, Defendants filed a motion to dismiss the Complaint against defendants O'Brien and Tate. (Doc. 31.) On April 19, 2010, the Court granted Defendants' motion to dismiss, with leave to amend. (Doc. 42.) On May 20, 2010, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 43.)
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.'" Id. While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is currently incarcerated at Corcoran State Prison in Corcoran, California. The events at issue allegedly occurred at the California Correctional Institution ("CCI") in Tehachapi, California, while Plaintiff was incarcerated there. Plaintiff names as defendants Correctional Officer R. Wenciker, Sergeant E. Nocye, Doctor C. O'Brien, and Chief Medical Officer H. Tate, all employees of the California Department of Corrections and Rehabilitation ("CDCR") at CCI.
Plaintiff alleges as follows in the First Amended Complaint. In March 2004, while housed at Ironwood State Prison in Blythe, California, Plaintiff was diagnosed with Keratoconus, a condition of the eye in which the cornea becomes thin and bulges outward. The condition was present in both eyes but predominantly in the left eye. In severe cases, rigid gas permeable ("RGP") hard contact lenses are used to flatten the surface of the cornea. Dr. Judd, Plaintiff's treating optometrist, prescribed and issued RGP lenses for Plaintiff. The RGP lenses worked well and began to flatten the cornea on Plaintiff's left eye.
On August 3, 2006, Plaintiff was transferred to CCI. Upon arrival, custody staff confiscated Plaintiff's RGP lenses, claiming to be following institutional protocol.*fn1 Plaintiff submitted a medical request form to have his RGP lenses returned or replaced, and he was examined by a nurse who referred him to the facility physician. Four months passed without any appointment, despite Plaintiff's submission of several medical request forms at intervals of two to three weeks.
Plaintiff filed a prison grievance on December 7, 2006. On December 18, 2006, he was seen by Dr. O'Brien who reviewed Plaintiff's medical records, including Dr. Judd's advice that Plaintiff wear RGP lenses at all times to control or even reverse his Keratoconus. Dr. O'Brien ignored Dr. Judd's reports and denied Plaintiff's request for RGP lenses. By now, Plaintiff's vision in his left eye was distorted and worsening. Plaintiff informed Dr. O'Brien about his worsening vision and pleaded for RGP lenses, but Dr. O'Brien ignored him and said he would be referred to an ophthalmologist.
On December 21, 2006, Plaintiff was evaluated by an optometrist who expressed concern about the confiscation of Plaintiff's RGP lenses, recommended they be returned to him, and requested that Plaintiff see an ophthalmologist. Under Departmental Guidelines at the prison, a specialist is not permitted to order medical treatment for a patient, but instead must make a recommendation to the staff/facility physician who must then approve the specialist's recommendation before treatment begins. In this case, the staff/facility physician was Dr. O'Brien, who refused to follow the optometrist's recommendation to provide Plaintiff with RGP lenses.
Approximately three months later, on March 6, 2007, Plaintiff was seen by the ophthalmologist, Dr. S. Wright, who recommended a cornea transplant. By this time, the vision in Plaintiff's left eye had deteriorated to the point that he could not distinguish a face at a distance of an arm's length. Plaintiff's right eye was also at risk of deterioration if left untreated. However, Dr. O'Brien continued to ignore Plaintiff's need for RGP lenses.
By this time, Plaintiff was limited in performing daily activities such as watching television or reading a family letter. Plaintiff was no longer able to practice his graphic skills, due to ...