The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 5) AMENDED COMPLAINT DUE AUGUST 1, 2011 SCREENING ORDER
On October 15, 2009, Plaintiff Bernard Brinkley, a civil detainee proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 5). Plaintiff's Complaint is before the Court for screening.
II. SCREENING REQUIREMENT
Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the Complaint for sufficiency to state a claim. The Court must dismiss a complaint or portion thereof if it determines that the action has raised claims that are legally "frivolous, malicious," or 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 Atlantic 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. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
The events that gave rise to this Complaint took place at Coalinga State Hospital. Plaintiff identified Pam Ahlin, Executive Director and Joginder Singh, Chief Medical Officer as Defendants in this action. Both are officials at Coalinga.
Plaintiff alleges the following:
On May 13, 2008, Plaintiff underwent knee surgery. (Compl. at 9). Several days later he began physical therapy which continued until the first week of July, 2008, when the physical therapist stopped working at Coalinga. (Id. at 10). No replacement physical therapist was hired until October 2008. (Id. at 24). In the interim four months Plaintiff's physicians repeatedly ordered physical therapy. Defendant Singh was in charge of hiring a replacement physical therapist and "made no attempt to replace therapist immediately, inspite [sic] of the fact that there were a number of individuals, as well as Plaintiff, who needed the services." (Id. at 10). On October 27, 2008, Plaintiff resumed physical therapy. Coalinga records show that six physical therapy sessions, three in October and three in November, satisfied the amount of therapy prescribed by Plaintiff's physicians. Plaintiff was prescribed additional therapy sessions by December 29, 2008, and began new therapy sessions on January 29, 2009. (Id. at 24).
The Complaint alleges Eighth and Fourteenth Amendment violations. Plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual punishment was abridged when the Defendants acted too slowly in hiring a replacement physical therapist while Plaintiff was in need of physical therapy. (Id. at 11). Plaintiff further alleges Due Process and Equal Protection violations. He asserts that his right to equal protection under the law was violated when he was deprived of physical therapy at Coalinga while the same medical treatment was available to patients at the other four state hospitals. (Id. at 12). Lastly, Plaintiff contends that ...