The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 8) RESPONSE DUE WITHIN THIRTY DAYS
Jose Rolando Ochoa ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on November 22, 2010. Doc. 1. Plaintiff filed a first amended complaint on February 4, 2011. Doc. 8.
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 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Amended Complaint
Plaintiff is currently incarcerated at North Kern State Prison ("NKSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendant E. Flores, a medical doctor employed at NKSP.
Plaintiff allege the following. On February 25, 2010, Plaintiff filed a health care request form CDC 7362 concerning his back problems, and explaining that he had been on pain medication and physical therapy. Plaintiff requested pain medication. Plaintiff was scheduled for a medical appointment on March 16, 2010. Defendant Flores did not grant Plaintiff's request for pain medication. Plaintiff did not agree with Defendant Flores's decision, and filed a CDCR 602-HC form. Plaintiff requested pain medication, a soft shoe chrono, and a MRI. Plaintiff was scheduled for another medical appointment with Defendant Flores on April 4, 2010, and Defendant Flores again failed to comply with the CDCR 602 HC orders.
After April 4, 2010, Plaintiff had an appointment with another medical doctor, who prescribed Plaintiff tylenol three times a day for thirty days. Plaintiff had a third follow-up appointment with Defendant Flores. Plaintiff requested tylenol as it had helped with Plaintiff's pain. Defendant Flores instead prescribed 300 mg of neraton, which did not relieve any pain at all. Plaintiff complains that Defendant Flores's diagnosis was cursory, and that she failed to provide all the medical requests that he made in the granted CDCR 602 HC form.
Plaintiff alleges a violation of the Eighth Amendment and of the Due Process Clause of the Fourteenth Amendment. Plaintiff requests declaratory relief and monetary damages.
A. Eighth Amendment - Medical Care
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." ...