The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
SECOND SCREENING ORDER ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND THIRTY-DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT
Plaintiff Luis Valenzuela Rodriguez ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint onMay 5, 2010, in the Sacramento Division of this court. (Doc. 1.) Plaintiff's case was transferred to the Fresno Division in the Eastern District of California on May 14, 2010. (Doc. 4.) Plaintiff filed a first amended complaint on August 19, 2010. On March 8, 2011, the Court screened the first amended complaint and ordered Plaintiff to either file a second amended complaint or notify the Court of his willingness to proceed only on the claims found cognizable. (Doc. 12.) On June 9, 2011, Plaintiff filed a second amended complaint. (Doc. 15.) Thereafter, on July 27, 2011, Plaintiff requested leave to file a third amended complaint. (Doc. 16.) On September 20, 2011, the Court granted Plaintiff's motion to file a third amended complaint. (Doc. 17.) On October 27, 2011, Plaintiff notified the Court that he was unable to file a third amended complaint and asked that the Court proceed with his second amended complaint. (Doc. 18.) Based on Plaintiff's request, the second amended complaint is presently before the Court for screening.
II. Screening Requirement
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, malicious," or 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.
III. Summary of Plaintiff's Second Amended Complaint
Plaintiff is currently a state prisoner at Kern Valley State Prison ("KVSP") in Delano, California, where the majority of the acts he complains of occurred. Plaintiff names the following defendants: Susan Hubbard, Director of the California Department of Corrections and Rehabilitation ("CDCR"); S. Lopez, Chief Medical Officer/Health Care Manager of KVSP; K. Harrington and M. Biter, Acting Wardens of KVSP; Soto, Captain at KVSP; Tiesdale and Phillips, Correctional Lieutenants at KVSP; Bell, Ozeta, S. Gregory, and Betzinger, Sergeants at KVSP; Green, Transportation Sergeant at Mule Creek State Prison; Garza, McAllister, Banger, Cano, and Anderson, correctional officers at KVSP; Akanno, S. Schaefer, Delio, Patel, Grassi, Spaeth, Chen, Guiang, Horton, and Vilchez, medical doctors at KVSP; Brecena, registered nurse at KVSP; Tredwell, Akpan, James, John and Jane Does I-V, vocational nurses at KVSP; Freire and Rankin, mental health at KVSP; C. Wegman, Community Services Manager at KVSP; Ron Alec, chaplain at KVSP.
Plaintiff alleges the following: Plaintiff was transferred from Mule Creek State Prison to KVSP on February 11, 2009. He alleges that the Disability Review Board was deliberately indifferent by transferring him to KVSP without ensuring that his ongoing medical needs would be met upon arrival.
On February 11, 2009, Correctional Officer Green of Mule Creek State Prison and John Doe took Plaintiff's personally owned walking cane, which Plaintiff was authorized to have and was needed for walking. Plaintiff contends that the cane was taken in retaliation for Plaintiff's filing of complaints against Defendant Green and others over the previous year. Doc. 15, p. 11.
Further, on February 11, 2009, during medical intake at KVSP, Plaintiff notified Defendants Becena and Akanno of his medical needs, including an ADA housing accommodation, a cane, heart medications, blood pressure medications, pain medications, catheter supplies and diapers. Plaintiff asserts that Defendants Akanno and Becena were deliberately indifferent to his medical needs, which exacerbated his chronic pain. He was forced to hobble without a cane for about two weeks, he was assigned to a second tier cell, he did not receive his p.m. medications, he did not receive his heart and blood pressure medications for a number of days, he did not receive catheter supplies and diapers for about 1 month, his Vicodin was discontinued and he did not receive a double mattress for weeks. Doc. 15, pp. 11-12.
When placed in an upper tier cell, Plaintiff informed Defendant Jane or John Doe, a licensed vocational nurse, of his medical needs. Plaintiff was told to submit a medical request form. In fear and panic, Plaintiff called "man down" so he could get to a hospital. At the hospital, Plaintiff was given catheter supplies, diapers and medications. He was forced to smuggle a catheter tube from the hospital back to KVSP to use until he could acquire a doctor's order for needed supplies and medication. Doc. 15, p. 13.
On February 13, 2009, Defendant Schaefer wrote a medical order for Plaintiff to be allowed diapers. Doc. 15, p. 13.
On March 1, 2009, Defendant Akanno wrote a medical order for Plaintiff to receive catheter supplies. Doc. 15, p. 13.
At some point, Defendant Akanno discontinued Plaintiff's Vicodin and replaced it with Tylenol-3, which Plaintiff refused after trying it for a few weeks. Doc. 15, p. 14.
On March 23, 2009, Defendant Schaefer referred Plaintiff for outside pain management. On May 9, 2009, the referral was modified for another MRI. Defendant Schaefer again referred Plaintiff for outside pain management. There was no outside referral. Doc. 15, p. 14-15.
On August 10, 2009, Plaintiff was referred to Defendant Guiang. He was provided Tramidol to start, along with Neurontin. The Tramidol did not work. Doc. 15, p. 15.
An August 29, 2009, MRI report allegedly stated that there was too much hardware in Plaintiff's lower spine to make any meaningful assessment of nerve damage. Doc. 15, p. 15.
Between February 11, 2009 and the date of the complaint, Plaintiff contends that Defendants Akanno, Schaefer, Patel, Delio, Grassi, Chen, M. Spaeth and S. Lopez were deliberately indifferent and disregarded Plaintiff's chronic pain by continuing to deny or to discontinue Plaintiff's needed pain medications, Vicodin and Gabapitin. Doc. 15, pp. 15-16. In August 2010, Plaintiff alleges that in retaliation for his verbal and written complaints, he was "cut off" of Tramidol and Neurontin (Gabapitin). He was told by Defendants Delio, Patel, Schaeffer, Vilches, Chen, Horton, Spaeth and S. Lopez that he would be provided with Tylenol, aspirin, Motrin or Naproxen for his pain. Plaintiff allegedly informed them that these did nothing to relieve his pain levels and problems. Doc. 15, p. 16.
Since September 2006, Plaintiff contends that he has required the periodic use of a wheel chair. After his arrival at KVSP, he continued to need periodic use of a wheelchair and requested a medical chrono authorizing such use from Defendants Schaeffer, Delio and Patel. He continued to be denied authorization for a wheel chair and was forced to acquire a wheel chair by other means between February 11, 2009 and August 2010, when recovered by staff. Doc. 15, p. 16.
In 2010 and 2011, Defendants Horton and Delio informed Plaintiff that they would refer his case to the KVSP pain management team for consideration of Tramidol for pain. Although there are no medical records of referral, Defendants Horton and Delio claimed that the KVSP pain management team had rejected Plaintiff's need for narcotic pain medications. Doc. 15, p. 17.
Between May 20 and November 14, 2010, Defendants James, Akpan, Ruiz and John and Jane Does I-IV denied Plaintiff his catheter supplies. Plaintiff was forced to file various complaints ("602s"). Although his 602s were granted, the licensed vocational nurses continued to refuse to provide medications and supplies. Plaintiff was forced to make his own diapers out of plastic bags and pieces of cloth. Many times, Plaintiff was given extremely large, bright blue plastic diapers, which he has refused to accept since November 3, 2010. Doc. 15, p. 17.
Between February 11, 2009, through the filing of this action, Plaintiff has periodically been forced to go without his medications, such as Plavix, Atenol, Lasix and aspirin. Defendants John and Jane Doe, Tredwell, Patel, Delio, and Horton were responsible for occasions without medication. Defendant Tredwell allegedly falsified medical records to state that she was giving him medications in November 2010. She acted in conspiracy with Defendants McAllister, Badger, Lane and John Doe. Doc. 15, p. 18.
Supervising Sergeant John Doe had Plaintiff's cell blatantly "tossed up" by McAllister and Badger, exposing confidential documents to Plaintiff's cellmate. Defendants McAllister and Badger removed notes and other items from Plaintiff's cell in retaliation for Plaintiff's request for medical attention for heart and chest pains. Doc. 15, p. 19. Defendants McAllister and Badger failed to provide Plaintiff with a cell search receipt in order to conceal the items taken from the cell. Plaintiff's 602 complaint was rejected by the appeals coordinator because he did not have a cell search receipt. Doc. 15, p. 20.
Defendant Tredwell allegedly falsified a disciplinary report against Plaintiff. Lieutenant Snow reportedly agreed that Defendant Tredwell falsified the report and dismissed the action. Plaintiff states this his 602 complaints were the motive for retaliation by Defendants McAllister, Anderson and Tredwell. Plaintiff contends that staff complaints against Defendants McAllister, Badger and Tredwell "disappeared" after mailing to the appeals office. Doc. 15, p. 19.
Plaintiff alleges that in response to his complaint of heart and chest pains in 2010, Defendant McAllister moved Plaintiff to a property/behavior management cell that had no shelves, no electrical outlet for his TV and no desk or stool for writing. Defendant Bell reportedly approved the change of cell request, which was submitted by Defendant McAllister immediately after Plaintiff was taken to the medical treatment area. Doc. 15, p. 20.
In a transfer order, Defendants Hubbard, Theil and McCarver reportedly ordered that Plaintiff would continue to be treated by his coronary physician at the University of California, Davis Medical Center for his heart stents. Defendants Harrington, Lopez, Schaefer and Spaeth refused to abide by the order to have Plaintiff transported back to the Davis Medical Center. On April 7, 2009, Plaintiff saw Dr. Singh at Kern Coronary Medical, but Dr. Singh did not have Plaintiff's medical records or medication information. Doc. 15, p. 21.
After an attempted murder attack on December 12, 2009, Plaintiff complained about blurred vision and eye irritation. About a week later, Plaintiff returned to Kern Medical Center and was discovered to have a cut cornea requiring treatment. Plaintiff continues to suffer from headaches and eye pains from his head injuries. Plaintiff complained to KVSP doctors about his symptoms, but was ignored. Doc. 15, p. 21.
On May 20, 2009, Plaintiff was removed from his mental health Enhanced Out-Patient ("EOP") specialized program status by Defendants Freire and Rankin in retaliation for complaints against Defendants Garza and Freire. Plaintiff contends that the removal occurred while he was in the law library in denial of his due process hearing rights. Doc. 15, p. 22. Defendant Freire's mental health notes identified Plaintiff as litigious. Plaintiff had filed complaints against Defendant Freire. Defendant Freire claimed to have cured Plaintiff of his extensive mental health problems in a few 10-15 minute discussions. Defendant Freire fraudulently invalidated Plaintiff's mental health care status and needs, which contributed to the attempted murder against ...