The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER (1) GRANTING MOTION TO DISMISS ADA AND RA CLAIMS; (2) DENYING MOTION FOR COUNSEL; (3) DISMISSING CDCR, OFFICIAL CAPACITY CLAIMS FOR DAMAGES, AND SECTION 845.6 CLAIM; AND (4) DISMISSING COMPLAINT WITH LEAVE TO AMEND EIGHTH AMENDMENT CLAIM (Docs. 1 and 9) THIRTY-DAY DEADLINE
Plaintiff Robert Coleman, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 17, 2009. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, U.S. , 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
A. Summary of Factual Allegations
Plaintiff suffers from pterygium and dry eye syndrome, and the denial of medical appropriate care for those conditions is at issue in this suit.*fn1 Plaintiff is currently incarcerated at California State Prison-Corcoran (Corcoran), and he brings this action against the California Department of Corrections and Rehabilitation (CDCR), the Director of CDCR, the Deputy Director of the Health Care Services Division, Warden Derrall G. Adams, and Chief Medical Officer (CMO) Wong for violation of his rights under federal and state law. Plaintiff's claims arise from the denial of adequate medical care while he was at California State Prison-Lancaster (Lancaster) and at Corcoran.
On March 4, 2006, while at Lancaster, Plaintiff was pepper sprayed by
Officer Palicios in retaliation for filing grievances. Medical
Technical Assistant Banga denied Plaintiff's subsequent request for
medical attention and falsely documented that Plaintiff sustained no
thereafter filed numerous requests for medical attention and inmate
appeals, "just to receive appropriate medical care."*fn2
(Doc. 1, Comp., court record p. 15.)
On May 10, 2007, Plaintiff was seen by the ophthalmologist at Lancaster, who ordered prescription sunglasses, but did not remove the pterygium.
Plaintiff was transferred to Corcoran on November 4, 2007, at which time he continued to pursue removal of the pterygium. On February 10, 2009, Plaintiff had surgery to remove the pterygium on his right eye. The left eye was supposed to be scheduled at that time, but it was not done. Following surgery on his right eye, doctors prescribed eye drops and ointment, but staff at Corcoran did not provide the medication. Plaintiff is currently being denied his artificial tear drop medication, and he has not received the second eye surgery.
Plaintiff alleges that he has a serious eye condition, but his requests for appropriate medical care have been disregarded, causing him to suffer years of excruciating pain, discomfort, and visual impairment. Plaintiff alleges Defendants are responsible for the ...