The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (Doc.9)THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendations Following Screening of Amended Complaint
I. Screening Requirement and Standard
Plaintiff Michael Chavez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132 (the Americans with Disabilities Act ("ADA")) on June 19, 2009. On December 16, 2009, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim. Pending before the Court is Plaintiff's amended complaint, filed January 25, 2010.
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.
To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. 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 Amended Complaint
Plaintiff is currently incarcerated at Pleasant Valley State Prison (PVSP), where the events at issue in this action occurred. Plaintiff alleges that Defendants Doctors Howard Ehrman, Felix Igbinosa, Kushner, and John Diep; Hayden, a registered nurse; Associate Warden John Ahlin; Captain Pineda; and Warden James Yates violated his rights under the Eighth Amendment of the United States Constitution and the ADA by failing to ensure that he received appropriate medical care.*fn1 Plaintiff seeks damages, unspecified equitable relief, and an order requiring the prison to stop staging fights between gang members because it interferes with his ability to obtain medical care.
Plaintiff offers the following facts in support of his claims that his rights were violated. Plaintiff slipped and fell at Ironwood State Prison in 2003, injuring himself, and he had carpal tunnel surgery on March 21, 2003. Plaintiff was transferred to PVSP on April 29, 2003, where his New Balance orthopedic shoes were confiscated by custody staff, making it hard for Plaintiff to walk without severe pain. (Doc. 9, Amend. Comp., court record pp. 3-4.) Plaintiff was not seen by medical staff until May 7, 2003, during which time he was without the pain medication he had been prescribed following his wrist surgery. When Plaintiff was seen, he requested to see a podiatrist to have his shoes replaced, but his request was denied by Defendant Kusher. Plaintiff filed an administrative appeal and prison officials acknowledged that custody staff needed to be trained on how to deal with inmates protected under the Armstrong remedial plan.*fn2
Plaintiff also alleges that he arrived at PVSP with twenty-two medical chronos, but only five of the twenty-two were renewed by PVSP staff. One of the chronos that was not renewed stated Plaintiff could not be handcuffed behind his back due to his medical condition.
Between May 7, 2003, and August 14, 2003, medical staff, including Defendant Kushner, denied Plaintiff his "basic fundamental" right to be free of pain and suffering. (Id., p. 5.) On August 29, 2003, Dr. Jeffery L. Tanji of UC Davis informed medical staff via a tele-med conference that Plaintiff needed hand therapy and pain medication, but staff failed to fulfil the orders, leaving Plaintiff to suffer in pain.
On November 4, 2003, Plaintiff requested to be seen for back and knee pain, but Dr. Neubarth denied him any further ...