ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS (ECF. No. 1)THIRTY-DAY DEADLINE
Plaintiff Policarpio Medina ("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, filed April 19, 2010.
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). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "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).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently incarcerated at the Correctional Training Facility in Soledad. The incidents alleged in the complaint occurred while he was housed at Kern Valley State Prison. Plaintiff brings this action against Defendants Dr. Chen, Chief Medical Officer Sherry Lopez, Dr. Shittu, Dr. Huang, Correctional Officer Concepcion, Psychiatric Technician Mena, and Registered Nurse Helen Tuhin, in their individual and official capacities, for deliberate indifference to his medical needs in violation of the Eighth Amendment, retaliation in violation of the First Amendment, and state law claims for medical malpractice and infliction of emotional distress. Plaintiff is requesting a permanent injunction requiring he be provided with adequate medical treatment, compensatory, nominal, and punitive damages, and costs.
On May 1, 2007, Plaintiff was transferred to Kern Valley State Prison and requested medical care due to excruciating back pain. (Compl. ¶ 12., ECF No. 1.) Plaintiff informed Defendant Chen of his medical history, the medications he had been prescribed, and that the only medication he could take without side effects was Tramadol. (Id., ¶ 13.) Defendant Chen refused to prescribe Plaintiff Tramadol, suggesting that he try another medication. (Id., ¶ 15.) For approximately nine months Plaintiff's medication was changed every ninety days while he continued to experience excruciating back pain. (Id., ¶ 16.) Although Plaintiff informed Defendant Chen that he was not responding well to the medication, Defendant Chen refused to prescribe Tramadol to Plaintiff. (Id., ¶ 17.)
On February 9, 2008, Plaintiff filed an inmate appeal and Defendant Chen saw Plaintiff for the second level review. (Id., ¶¶ 17, 18.) Defendant Chen granted the inmate appeal and prescribed Tramadol, but told Plaintiff that he "602 the wrong person, I won't forget about this." (Id., ¶ 18.)
On February 14, 2009, Defendant Mena told Plaintiff that his Tramadol prescription was expiring and Plaintiff requested that Defendant Chen be informed so his prescription could be renewed. Plaintiff expressed his concern that he could go through withdrawal symptoms and Defendant Mena told him she would inform Defendant Chen. (Id., ¶ 21.) On February 16, 2009, Defendant Mena told Plaintiff that she did not know why, but that Defendant Chen was not going to renew the prescription. Plaintiff again expressed his concern that he would experience withdrawal symptoms, but Defendant Mena responded that she had told the doctor and there was nothing she could do. (Id., ¶ 22.)
On February 19, 2009, Plaintiff's Tramadol prescription ran out and on February 20, 2009, he was unable to eat and experienced vomiting, diarrhea, cold sweats, aching bones, and insomnia. (Id., ¶¶ 23, 24.) During the morning Defendant Mena came by to dispense medication. Plaintiff asked for immediate medical attention due to his symptoms and she told him there was nothing she could do for him. (Id., ¶ 25.) Plaintiff's symptoms continued and on February 22, 2009, Plaintiff again informed Defendant Mena of his symptoms and she stated there was nothing she could do for him, but that he was scheduled to see the doctor the following day. (Id., ¶ 28.)
On February 23, 2009, Plaintiff was seen by Defendant Chen, who stated that he remembered Plaintiff because he had filed an inmate appeal against him. (Id., ¶ 29.) Plaintiff told Defendant Chen that he was unable to eat, with vomiting and diarrhea, and excruciating lower back pain. He requested that his Tramadol be renewed. Defendant Chen said that he did not care and was not going to prescribe the medication. (Id., ¶ 30.) Defendant Chen prescribed Tylenol, despite Plaintiff's complaints that he did not do well on Tylenol. (Id., ¶ 32.)
Plaintiff continued to suffer from diarrhea, vomiting, cold sweats, aching bones, violent shakes, insomnia, and excruciating pain. After taking the Tylenol for five days Plaintiff began experiencing nausea, so he discontinued the medication. (Id., ¶ 34.) In February 2009, Plaintiff mailed a letter to Defendant Lopez notifying her about his medical condition and Defendant Chen's refusal to provide adequate medical care. Defendant Lopez never acknowledged receipt of his letter and did not intervene. (Id., ¶ 40.)
On April 20, 2009, Plaintiff again requested that Defendant Chen prescribe Tramadol and Defendant Chen stated that he could not because Plaintiff was on psychotropic medication which would have a bad reaction. (Id., ¶ 37.) Plaintiff went off his psychotropic medication, but Defendant Chen refused to prescribe Tramadol. (Id., ¶¶ 37, 38.) Plaintiff was prescribed a different medication. (Id., ¶ 39.)
On June 1, 2009, Plaintiff was seen by Defendant Shittu and requested that he be prescribed Tramadol. Defendant Shittu stated that Plaintiff needed to discuss it with Defendant Chen as he was the doctor who was prescribing his medication. (Id., ¶ 41.) Plaintiff informed Defendant Shittu that he was in severe pain while taking the current medication, but Defendant Shittu refused to change the medication. (Id., ¶¶ 42, 43.)
On July 4, 2009, Plaintiff presented to the medical clinic and informed Defendant Concepcion that he was experiencing pain and required emergency care. (Id., ¶¶ 44, 46.) Defendant Concepcion, "without any medical training or authority" made the assessment that no emergency existed, ...