ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
On December 28, 2009, Plaintiff Alvin J. Schroeder, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. On November 22, 2010, Plaintiff filed a first amended complaint which is currently before the Court. Doc. 18.
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).
"'Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.'" Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden Hayes, 213 F.3d 443, 447 (9th Cir.2000). "'Additionally, in general, courts must construe pro se pleadings liberally.'" Id. A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
Plaintiff is suing under section 1983 for events which occurred while as a prisoner at Pleasant Valley State Prison ("PVSP") in Coalinga California. Doc. 18. In his complaint, Plaintiff names the following defendants: 1) S. Lantz (Lieutenant at PVSP); 2) Spearman (Associate Warden at PVSP); 3) James A. Yates (Warden at PVSP); 4) G. Duran (Appeals Coordinator at PVSP); 5) G. Mendez (LVN at PVSP); 6) Griffin (RN at PVSP); 7) E. Brown (Physician's Assistant at PVSP); 8) G. Mills (Lieutenant at PVSP); and 9) K. Center (Sergeant at PVSP). Doc. 18 at 1-2. Plaintiff seeks injunctive relief to have his pain medications reinstated, monetary damages and for his CDC disciplinary action to be overturned. Doc. 18 at 8.
Plaintiff alleges that Defendant Brown "negligently and wrongfully accused Plaintiff of 'cheeking his medications,' and agreeing with other harassing nurses." Doc. 18 at 6. Plaintiff explains that after "complete searches of Plaintiff's mouth, body, clothing and cell searches, no medications were ever found, not even one single pill." Doc. 18 at 6. Following the searches, Defendant Brown discontinued all of Plaintiff's pain medications "in retaliation so that Staff Personnel would not have to worry about if the medications were swallowed or not." Doc. 18 at 6. Plaintiff alleges that Defendant Brown subjected Plaintiff to cruel and unusual punishment by "discontinuing Plaintiff's pain medications under an assumption that [Plaintiff] . . . might be cheeking his medications, and not swallowing them" which resulted in Plaintiff suffering pain. Doc. 18 at 6.
According to Plaintiff, Defendant Mills ordered Plaintiff to provide a urine sample to determine whether Plaintiff was taking his pain medications (morphine). Doc. 16 at 6. Plaintiff complied with the urine sample request and placed a seal on the sample, however, the results "failed to show up in the U.A. printout." Doc. 18 at 6. Plaintiff claims that the U.A. was tampered with or flawed and that Defendant Mills explained (in front of witnesses housed in Building #3) that all the tests were the result of Plaintiff writing a complaint about his nurse. Doc. 18 at 6.
Plaintiff alleges that on October 4, 2009, Defendant Center ordered Plaintiff to submit a urine test sample to determine if Plaintiff was lying about ingesting his medications. Once again after submitting a urine sample the test results were tampered with. Doc. 18 at 7.
Plaintiff alleges that during Plaintiff's CDC-115 hearing, Defendant Lantz refused to call LVN Mendez and Correctional Officer Bertagna as witnesses for the hearing. Doc. 18 at 4. According to Plaintiff, Defendant Spearman was apprehensive when he signed off a CDC-115 form because of the failure to call Mendez and Bertagna to testify. Doc. 18 at 4. Plaintiff asserts that Defendant Yates and Defendant Duran signed off on a CDC-602 appeal form knowing that Plaintiff's hearing rights were violated. Doc. 18 at 4-5. Plaintiff alleges that Defendant Mendez required Plaintiff to cough and remove his dentures so that his mouth could be checked to determine whether he was concealing medications and Plaintiff complained about having "unhealthy fingers in [his] mouth." Doc. 18 at 5. According to Plaintiff, Defendant Griffin was Defendant Mendez's immediate supervisor and failed to stop Defendant ...