The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING INADEQUATE FOOTWEAR CLAIMS FROM ACTION WITHOUT PREJUDICE, AND REQUIRING PLAINTIFF TO EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON EIGHTH AMENDMENT CLAIM AGAINST DEFENDANTS DUTRA AND SOTO (Doc. 17) THIRTY-DAY DEADLINE
I. Screening Requirement and Standard
Plaintiff Arvie B. Carroll, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on April 9, 2010. On April 12, 2011, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a).
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. Iqbal, 129 S.Ct. at 1949; 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.
II. 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 Wardens James A. Yates and R. H. Trimble; Chief Deputy Warden J. Mattingly; Associate Warden M. C. Davis; inmate appeals coordinators or managers N. Grannis, M. Broddrich, J. Walker, I. Igbinosa, and A. Nesbit; Correctional Counselor G. Duran; Correctional Lieutenants J. D. Bennett and N. Greene; Correctional Sergeant W. R. Oxborrow; Correctional Officer K. Dutra; Senior Lab Technician C. Samareta; and Licensed Vocational Nurse Valdez violated his rights under the Eighth Amendment of the United States Constitution and under California law. Plaintiff seeks damages and an injunction prohibiting enforcement of the outdoor staging policy and requiring Defendants to provide him with adequate footwear.
In September or October of 2008 while at Kern Valley State Prison, Plaintiff had surgery to remove a cataract from his left eye. Plaintiff was instructed not to let water get in his eye and he was prescribed Prednisolene, Moxifloxa, and Ketorolac following the surgery. Plaintiff also suffers from hypothyroidism, which slowed the healing of his eye.
On November 17, 2008, Plaintiff was transferred to PVSP. Medical staff reviewed Plaintiff's medical information, noted his history of tuberculosis and his recent eye surgery, and provided Plaintiff with prescriptions for his thyroid condition and eye pending an initial appointment with a doctor.
On December 16, 2008, Plaintiff was given a next-day pass to the medical clinic to have a blood draw. When Plaintiff arrived in the morning, it was about 48 degrees and damp outside. After Plaintiff turned over his identification card to Defendant Dutra, Defendant ordered him to wait outside instead of in the indoor holding cell as was customary under prison policy and practice. Plaintiff objected on the grounds that it was cold and damp, he had an eye injury, and the indoor holding cell was empty. Plaintiff's request to wait in the holding cell was denied by Defendant Dutra, who told Plaintiff that PVSP's policy was to make inmates wait outside on the par course regardless of weather.*fn1 Medical clinic staff members were not performing any medical duties at that time but were socializing, and Plaintiff argued that he should not have to wait outside in the foul weather with an eye wound while staff sat around talking about their social lives. Defendant Dutra reiterated PVSP's outdoor staging policy and ordered Plaintiff out of the clinic.
After approximately thirty minutes, Plaintiff's eye began to tear up and hurt. Alarmed, Plaintiff reentered the clinic, reported the pain and tearing to Defendant Dutra, and requested to wait in the holding cell. Defendant Dutra denied the request based on the outdoor staging policy, at which time Plaintiff requested that he be allowed to return to his housing unit to wait until Defendant Soto, the lab technician, was ready to start. Defendant Dutra denied the request and told Plaintiff that if he returned to his housing unit, he would have to sign a form refusing medical treatment. Plaintiffc responded that he was not refusing medical treatment and he was asking to return to his housing unit to wait only because the cold outdoor weather was causing his left eye to hurt and tear up. Defendant Dutra insisted that the policy was for inmates to wait outside and Plaintiff would have to go back outside if he did not want to sign a treatment refusal form. Plaintiff again asked to wait in the empty holding cell, but Defendant Dutra refused and ordered him back outside.
Plaintiff went back outside, but after fifteen minutes, he could not stand the pain and tearing any longer. Plaintiff went inside and once again requested to wait in the holding cell. After Defendant Dutra denied his request, Plaintiff asked for his ID card back so he could return to his housing unit. Defendant Dutra refused to give Plaintiff his ID card unless he signed a treatment refusal form, so Plaintiff finally signed the form, in pain and under duress. When Plaintiff returned to his housing unit and looked in the mirror, he saw blood in the white of his left eye and yellow discharge oozing from the corner of the eye.
Plaintiff filed an inmate appeal describing his ordeal and requesting that prison officials cease creating conditions under which inmates are mistreated and discouraged from seeking medical care and develop a system that did not require inmates to wait outside in cold, inclement weather. Defendant Lopez responded to the appeal at the informal level of review on January 2, 2009, and cited fourteen medical treatment refusals documented in Plaintiff's file but failed to address any of the issues raised in the appeal.
On January 6, 2009, Plaintiff submitted his appeal to the first formal level of review. While waiting for the appeal response, Plaintiff spoke with Defendant Greene about the outdoor staging policy and told him that exposure to inclement weather exacerbated the conditions of inmates with pre-existing medical conditions. Defendant Greene stated that Plaintiff and the other inmates were going to have to follow the prison's policies.
On February 17, 2009, Defendant Samareta interviewed only Defendant Soto, who was the lab technician, and based the appeal investigation findings only on that interview, despite the existence of a regulation ...