ORDER FINDING COGNIZABLE CLAIMS AND ALLOWING PLAINTIFF TO FILE AN AMENDED COMPLAINT ORDER VACATING FINDINGS AND RECOMMENDATIONS (Doc. 8) (Docs. 1, 2, 11) THIRTY-DAY DEADLINE
Plaintiff Timothy J. Severson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the Court is the complaint and a motion for preliminary injunction, filed on November 30, 2010. (Docs. 1, 2.) On December 9, 2010, the Magistrate Judge issued findings and recommendations recommending this action be dismissed for failure to exhaust administrative remedies and the motion for preliminary injunction be denied. (Doc. 8.) Plaintiff filed an objection on January 4, 2011, stating that the prison is obstructing his ability to exhaust administrative remedies by failing to process his inmate appeals. (Doc. 11, p. 1.) Plaintiff alleges that he submitted inmate appeals on September 21and 29, 2010, and October 3 and 22, 2010. (Id.) Plaintiff states that none of the appeals have been considered at any level of review. (Id., pp. 1-2.) Based upon Plaintiff's allegations that he is being obstructed from pursuing his administrative remedies, the Court will vacate the findings and recommendations issued December 9, 2010. (Doc.8.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard 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. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[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.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). "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). However, although the pleading standard is now higher, prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 611 F.3d 1202, 1204-05 (9th Cir. 2010) (citations omitted).
III. Plaintiff's Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Pleasant Valley State Prison ("PVSP"). In February 2006, while housed at Folsom State Prison ("FSP"), Plaintiff reinjured his lower back while loading trash bags into a truck during his work assignment. (Doc. 1, Comp., ¶ 23.) An M.R.I. was performed and a neurosurgeon was consulted. (Id., ¶¶ 25-27.) In July 2008, Plaintiff was referred to a pain management specialist who recommended treatment which medical personnel at FSP followed. (Id., ¶ 28.) On March 4, 2009, Plaintiff was referred to another pain management specialist and in September 2009, the specialist performed an epideral steriod injection and prescribed "an experimental pain management 'drug cocktail.'" (Id., ¶¶ 30-32.) On September 30, 2009, Plaintiff was declared to be mobility impaired due to his chronic lower back pain and "mandated" to be transferred to PVSP Medical Facility. (Id.,¶ 33.) Plaintiff was transferred to PVSP on February 10, 2010. (Id., ¶1.)
Plaintiff states that since he arrived at PVSP he has been denied meaningful treatment as medical personnel have only provided him with pain management medication, not the long term pain management regimen that was prescribed at FSP. (Id., ¶34.) Plaintiff has submitted approximately twenty six health care request forms while at PVSP. He has been suffering from acute rectal pain with involuntary bowel movements and urination since March 2010, and experiencing difficulty sleeping and performing daily functions due to his "extreme, debilitating lower back pain." (Id., ¶¶ 8-9.) Plaintiff alleges that Defendant Igbinosa, Chief Medical Officer, ordered medical staff not to process any health care service requests for appointments to renew pain management medication prescriptions. (Id., ¶ 13.)
On September 15, 2010, the Men's Advisory Council sent a letter to Defendant Igninosa alleging that it appeared that a number of men on long term pain medication were being taken off of or cut back on their medication. The letter stated that Defendant Chokatos was consistently denying or reducing pain medication. (Id., pp. 47-49.)
On September 21, 2010, Plaintiff was seen by Defendant Taherpour for routine pain management to have his prescription renewed. Defendant Taherpour discontinued part of the pain management drug therapy. Plaintiff was concerned that he would be unable to sleep without the medication and Defendant Taherpour advised Plaintiff that he would be able to get the medication again, but to give the new treatment some time. (Id., ¶14.) On September 24, 2010, Plaintiff became aware that Defendant Taherpour was not going to renew his pain management prescriptions and submitted nine health care request forms to have another doctor renew his prescriptions before they expired on October 2, 2010. (Id., ¶ 17.)
On October 2, 2010, his medication had not been renewed and Plaintiff suffered narcotic withdrawal, as well as intense pain. (Id., ¶ 18.) On October 4, 2010, Plaintiff was forced to walk to the medical department and passed out from the pain. (Id., ¶ 19.) Due to the intense pain Plaintiff had an abnormally high blood pressure reading, which he alleges caused him to be at an increased and unnecessary risk of stroke or heart attack. (Id., ¶ 20.)
Defendants Chokatos and Fortune are PVSP medication personnel and are assigned as primary care providers for Plaintiff and C-Facility. (Id., ¶ 4.) Plaintiff brings this action against Defendants Igbinosa, Chokatos, Fortune, and Taherpour for deliberate indifference to his medical needs in violation of the Eighth Amendment. He is seeking a preliminary injunction and temporary restraining order to stay Defendants from changing his pain management prescriptions until the inmate appeals process has been exhausted. (Id., § V.)
In his objection to the findings and recommendations Plaintiff objects to the factual allegations. Plaintiff states he has been suffering from intense lower back pain for the past four to five years and has been prescribed multiple medications to treat his pain. (Doc. 11, p. 4.) Plaintiff states that this is not simply a difference of opinion between medical providers or between him and his physician. (Id., pp. 5, 9.) Plaintiff appears to interpret the findings and recommendations to infer that his medical condition is not serious. The Court recognizes that Plaintiff's complaint states a serious medical need. Although Plaintiff complains that he has been denied all medical treatment for his back pain, he is receiving pain medication. (Id., p. 4.)
Plaintiff's pain medication expired in September 2010, prior to the medical department renewing his prescription. (Id., pp. 5-6, 8.) On December 9, 2010, Plaintiff missed a medical appointment due to having a migraine headache. He requested to be taken to the medical unit by wheelchair and was refused. Plaintiff has submitted medical requests to have another appointment scheduled before his pain medication expired on December 21, 2010. (Id., p. 9.) On December 22, 2010, Plaintiff passed out due to pain and he alleges that prison staff made an announcement over the public address loud speaker that he was faking his medical condition. As of December 24, 2010, Plaintiff had still not received his medication and was ...