The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 13)
OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Bilal Ahdom ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on October 26, 2009. Currently before the Court is the first amended complaint, filed September 14, 2010. (ECF No. 13.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally 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). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is incarcerated at the California Substance Abuse Treatment Facility in Corcoran. Plaintiff brings this action against Defendants CDCR, S. Lopez, Dr. Chen, Hedgepath, Schaefer, Dr. Spaeth, Dr. Shittu, Dr. Ashby, Araich, Dr. Rashidi, Dr. Paik, Orthopedic Medical Group, Matheny, M. Tolano, Kimura, D. Ghedhart, Harrington, and Does One through Seven alleging deliberate indifference to serious medical needs in violation of the Eighth Amendment and violation of the Americans With Disabilities Act ("ADA"). (First Am. Compl. ¶¶ 7-25.)
On May 1, 2008, while housed at Kern Valley State Prison, Defendant Rashidi performed back surgery on Plaintiff. Defendant Rashidi ordered the incision be cleaned and dressed every two days and a six week follow -up appointment, but did not prescribe antibiotics after surgery. (Id. ¶ 26.) Plaintiff was seen by Defendant Araich on May 9, 2008, and she entered an order that his incision be cleaned and dressed every two days. (Id. ¶ 27.) Plaintiff's incision was not cleaned and dressed. (Id. ¶ 29.) On May 24, 2008, Plaintiff was seen by Defendants Doe One and Two and told them that his staples were to have been removed on May 12, 2008, and that he was in pain and the incision was cracked, bleeding, and swollen. Defendants Doe One and Two confirmed that the staples were to have been removed around May 12, 2008, and informed him that his staples would not be removed until May 27, 2008. (Id. ¶ 30.) On May 27, 2008, Doe Three removed Plaintiff's staples without providing him with additional pain medication, despite Plaintiff telling her to stop because the removal was causing him excruciating pain. (Id. ¶ 32.)
From May 24, 2008 through September 11, 2008, Plaintiff requested antibiotics, a lower cell assignment, assignment to an ADA cell, a lower bunk and mattress chrono, a chrono exempting him from "proning," and effective pain management from Defendants Araich, Doe One , Doe Two, Chen, Shittu, and Ashby which were denied. (Id. ¶¶ 28, 30, 31, 35-39, 43, 44.) Plaintiff alleges that due to the denial of his requests he was forced to suffer excruciating pain and his healing was interrupted. (Id. ¶ 40.)
Plaintiff did not see Defendant Rashidi until August 12, 2008, and on June 12, 2008, Plaintiff filed an appeal regarding not having a six week follow-up appointment. (Id. at ¶¶ 33, 34.) Plaintiff complained about his medical treatment and lack of accommodations to Defendants Lopez and Spaeth.
On October 5, 2008, Plaintiff was taken to Delano Emergency after he injured his Achilles tendon and was placed in a knee high cast and issued crutches. (Id. ¶ 45.) Plaintiff was seen by Defendants Shittu and Schaefer and requested pain medication, treatment for his tendon injury, and chronos for a lower tier/bunk cell, and other ADA accommodations. (Id. ¶¶ 46-50.)
On October 27, 2008, Plaintiff was seen by Defendant Paik at the Orthopedic Medical Center who informed Plaintiff that his injury should be treated as soon as possible and ordered a pre-surgery MRI. (Id. ¶¶ 51, 52.) Defendant Paik refused Plaintiff's request that he be admitted to the hospital immediately and an emergency MRI ordered so there would be no delay in treatment. (Id. ¶ 53.) Plaintiff was examined by Defendant Schaefer on October 30, 2008, and sent to Delano Emergency Room for pain in his back and leg. (Id. ¶ 56.) An MRI was done on November 7, 2008. (Id. ¶ 57.) Plaintiff saw Defendant Schaefer on November 10, 2008. Plaintiff requested a lower tier cell due to his cast and crutches. Defendant Schaefer denied the chrono, increased his medication, and told him he would be scheduled for an epidural injection. (Id. ¶ 58.)
Plaintiff was taken to Delano Emergency Room after his cast caught on the stairs and he fell injuring his back on November 22, 2008. (Id. ¶ 59.) At the follow-up visit with Defendant Paik, Defendant refused to perform surgery on Plaintiff's tendon. (Id. ¶ 60.) Plaintiff was told by Dr. Chandrasekaran, more than seven weeks after the injury, that he did not recommend surgery because the surgical repair should have been done within seven to fourteen days to obtain the best results. (Id. ¶ 61.)
On November 25, 2008, Plaintiff mailed complaints to Defendants Hedgepeth and Kimura informing them of the delays in receiving medical care, continued pain, and denial of ADA accommodations. (Id. ¶ 63.) On December 17, 2008, Plaintiff was moved to a lower tier. (Id. ¶ 68.)
Plaintiff was examined by Dr. Amirpour on January 5, 2009, and was diagnosed with a complete tear of his Achilles tendon. Dr. Amirpour did not recommend surgery due to the length of time since the injury occurred. (Id. ¶ 71.) Plaintiff was examined by Dr. Rahimifar on January 22, 2008, who determined that Plaintiff would benefit from a more effective pain medication, but Defendant Lopez denied the recommendation. (Id. ¶ 72.)
From May 4, 2008 through December 16, 2008, Plaintiff made numerous requests to Defendants Matheny, Doe Four, and Doe Five that he be moved to a lower cell due to pain from walking the stairs and fear of falling. (Id. ¶ 65.) Defendants Matheny, Doe Four, and Doe Five refused Plaintiff's requests because they were not authorized to move Plaintiff without a lower tier/bunk chrono. (Id. ¶ 67.)
Plaintiff's appeals requesting effective pain management and an orthopedic mattress were denied by Defendants Schaefer, Lopez, Spaeth, and Tolano. The orthopedic mattress was denied because it was determined not to be medically necessary, although Dr. Qamar had authorized the issuance of an orthopedic mattress on July 7, 2007. (Id. ¶ 73.) Plaintiff's request to see a specialist at the University of California, Davis was denied by Defendants Lopez, Schaefer, ...