The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 THIRTY-DAY OBJECTION PERIOD (Doc. 10)
Findings and Recommendations Following Screening of Amended Complaint
Plaintiff William Young Sutherland, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 19, 2009. On February 3, 2011, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state any claims under section 1983. Plaintiff filed an amended complaint on March 7, 2011.
II. Screening Requirement and Standard
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.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally 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). 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.
III. Plaintiff's Amended Complaint
A. Summary of Allegations
Plaintiff, who suffers from a degenerative neck and back problem that is debilitating if not treated with pain medication, was transferred to Pleasant Valley State Prison (PVSP) in Coalinga, California on January 13, 2009. Plaintiff seeks to impose liability on the PVSP Medical Department, California Department of Corrections and Rehabilitation Health Care Services Chief J. Walker, PVSP Warden James Yates, PVSP Chief Medical Officer F. Igbinosa, and PVSP Pharmacist-in-Charge C. Yun for violating his rights under the Eighth Amendment of the United States Constitution.
Upon his arrival at PVSP, Plaintiff was initially placed in the orientation unit, where he was repeatedly denied his medication, leaving him to suffer in pain. Plaintiff was released from the orientation unit on January 30, 2009, and he received his medication regularly until February 14, 2009, when the medication was stopped abruptly with no explanation. Plaintiff wrote to the medical department and then filed an inmate appeal on March 3, 2009, but the appeal was subsequently denied at every level. During this time period, Plaintiff asked medical staff members Roman, Didi, Morra, and Gonzalez for assistance and they told him that they would look into the situation, but he each time he followed up with them, they said they forgot.
On March 5, 2009, Plaintiff saw Dr. Rohrdanz, who ordered an orthopedic pillow to help Plaintiff sleep at night, a number of tests, and a refill of Plaintiff's pain medications. When Plaintiff made Dr. Rohrdanz aware that he had been deprived of his pain medication for three weeks, Dr. Rohrdanz assured him it would be reissued immediately. However, it took five days for one of the medications to be refilled and twenty-one days for the other medication to be refilled. The orthopedic pillow was not issued to Plaintiff until June 6, 2009. On May 1, 2009, Plaintiff saw Dr. Paja, who reordered Plaintiff's pain medication. It took fourteen days for that refill to occur.
During this time period, Plaintiff's appeal was being partially granted at each level but the key issue of delay was avoided. On May 10, 2009, Plaintiff was interviewed by Defendant Yun, the pharmacist-in-charge, but he failed to address the issue of Plaintiff's non-receipt of his medication in a timely manner. Defendant Yun referenced the ...