ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS (Doc. 1)
ORDER VACATING THE FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND ORDER FINDING COGNIZABLE CLAIMS AND ORDER DIRECTING USM TO SERVE COMPLAINT (Docs. 13, 14, 19, 22)
ORDER GRANTING PLAINTIFF'S MOTION TO WITHDRAW MOTION FOR A STAY AND ABEYANCE AND WITHDRAWING MOTION (Docs. 16, 20) 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. On November 30, 2010, Plaintiff filed this action seeking a temporary restraining order and a motion for a temporary restraining order. (Docs. 1, 2.) The Court screened the complaint and issued findings and recommendations recommending dismissal of the action, without prejudice, for failure to exhaust administrative remedies on December 9, 2010. (Doc. 8.) In light of the seriousness of Plaintiff's allegations a copy of the order was served on the receiver's office requesting that they check into Plaintiff's situation to ensure that he was not being removed from necessary treatment arbitrarily without a sound medical basis. (Doc. 9.)
On January 4, 2011, Plaintiff filed objections to the findings and recommendations stating that he was being obstructed from exhausting his administrative appeals by prison officials because his inmate appeals were being intentionally delayed and that none of the inmate appeals he filed had been heard at any level. (Doc. 11.) Due to Plaintiff's allegations that officials were obstructing his ability to exhaust administrative remedies, the Court vacated the findings and recommendations issued on December 9, 2010. On January 20, 2011, an order finding cognizable claims was issued simultaneously with an order serving the complaint on Defendant Taherpour. (Docs. 13, 14.)
On January 24, 2011, Plaintiff filed a motion for a stay and abeyance because he was interviewed on his administrative grievance on January 4, 2011, and was notified that his grievance was partially granted. (Doc. 16.) Plaintiff stated that he wanted the complaint considered after he had completed the administrative remedies process. On January 25, 2011, the Court issued an order recalling the order directing service and findings and recommendations recommending this action be dismissed for failure to exhaust administrative remedies. (Doc. 17, 19.) On January 31, 2011, Plaintiff filed a motion to withdraw his motion for a stay and abeyance. (Doc. 20.) Objections to the findings and recommendations were filed on February 16, 2011. (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 "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). "
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, ¶ 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 was followed by medical personnel at FSP. (Id., ¶ 28.) On March 4, 2009, Plaintiff was referred to another pain management specialist and in September 2009, the specialist performed a 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 ...