The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THE DISMISSAL OF CERTAIN CLAIMS (Doc. 23)
Plaintiff Andrew Lopez is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S .C. § 1983. Currently pending before the Court is Plaintiff's First Amended Complaint, ("FAC"), filed July 15, 2010. (Doc. 23.)
The Court is required to review a case in which a prisoner seeks redress from a governmental entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). If the Court determines the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
The Civil Rights Act under which this action was filed provides a cause of action against any "person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States.]" 42 U.S.C. § 1983. To prove a violation of § 1983, a plaintiff must establish that (1) the defendant deprived him of a constitutional or federal right, and (2) the defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). "A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). In other words, there must be an actual causal connection between the actions of each defendant and the alleged deprivation. See Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff's obligation to provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than "naked assertions," "labels and conclusions," or "formulaic recitation[s] of the elements of a cause of action." Twombly, 550 U.S. at 555-57. The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting Twombly, 550 U.S. at 570). Vague and conclusory allegations are insufficient to state a claim under § 1983. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 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).
II. FIRST AMENDED COMPLAINT
Plaintiff is in custody of the California Department of Corrections and Rehabilitation and is incarcerated at the California State Prison in Corcoran, California ("CSP-Corcoran"). The incidents alleged in the complaint occurred from 2003 through June 2010. Plaintiff brings this action against eighteen named and four unnamed defendants, alleging deliberate indifference to serious medical needs, retaliation, as well as state law claims against defendants at CSP-Corcoran. More specifically, Plaintiff alleges as follows:
From 1984 to the present, Plaintiff has continued to suffer from
herpes simplex keratitis, a disease affecting his eyes. (Doc. 23 at
16.) From 2006 to date, Defendant Macalvaine, a supervising registered
nurse, and Defendants Florez, Reed, Thomas, and Clark II,*fn1
(all CSP-Corcoran Licensed Vocational Nurses ("LVN")),
ignored existing medical orders by failing to provide Plaintiff with
his prescribed medicine, Viroptic A, which was to be administered four
times daily for his eye infection. (Id.) Additionally, during this
same time period, these Defendants failed to schedule Plaintiff for
follow-up appointments regarding the infection. (Id.) The actions of
these LVNs were set in motion by policies supported by Defendants
McGuinness, Clark I, and Macalvaine. (Id.)
In addition to the keratitis, on September 13, 2007, doctors at the Delano Regional Medical Center, an off site facility, performed a surgery to treat Plaintiff's deviated septum. (Doc. 23 at 17.) Following the surgery, the treating physician proscribed pain medication, (Vicodin), for pain associated with the surgery once the anesthesia wore off. (Id.) Following the surgery, Plaintiff was returned to CSP-Corcoran's Acute Care Facility ("ACF") for a health check prior to being returned to his cell. (Id. at 18.) At the ACF, Plaintiff was seen by Defendant Veronica, the registered nurse on duty. (Id.) Plaintiff showed Veronica the doctor's previous prescription for Vicodin and explained that he was in severe pain as the anesthesia was wearing off from his surgery, however Veronica failed to provide the prescribed medication. (Id. at 18-19.)
After being denied medication at the ACF, Plaintiff was returned to his cell. (Doc. 23 at 19.) At approximately 5 p.m., Plaintiff encountered Defendant Reed, who was completing her routine distribution of medications to prisoners. (Id. at 19.) Plaintiff advised Reed he was in severe pain, and showed her his previous doctor's orders for pain medication, and also asked to be seen by another nurse. (Id.) At this time, Reed advised Plaintiff that she did not have any Vicodin for Plaintiff and did not provide Plaintiff with any medications. (Id.) Defendant Reed returned at approximately 8 p.m., and again informed Plaintiff that she did not have pain medication for him and continued to ignore his statements that he was in pain and his requests to see Reed's supervisor. (Id.)
At approximately 8:45 p.m., Plaintiff advised Defendant Jackson, a correctional officer, that he was in severe pain and needed urgent care. (Doc. 23 at 19.) However, Defendant Jackson failed to take action to ensure that Plaintiff received prompt medical attention. (Id.) Later that evening, sometime after approximately 10 p.m., Defendant Romero (a correctional officer) began his shift, and Plaintiff encountered Romero near his cell door. (Id.) On two separate occasions, Plaintiff advised Romero that he was need of medical attention, however Romero similarly failed to summon medical assistance and later stated that he had already "told them earlier" that Plaintiff needed assistance. (Id. at 21.)
On September 14, 2007, at approximately 8 a.m., Plaintiff spoke with Defendant Florez, who had entered Plaintiff's housing unit. (Doc. 23 at 21.) Plaintiff showed Florez his doctor's previous orders regarding the pain medications and informed Florez that he had not slept because of his severe pain, was suffering from chest pains, and also was coughing up blood. (Id.) However Florez failed to ensure Plaintiff received his medication, and did not summon medical attention causing Plaintiff to suffer an additional four hours without his pain medication. (Id. at 21-22.) Plaintiff did not receive the medications until 12:20 p.m. on September 14, 2007. (Id.) Plaintiff alleges that both Defendant Florez' and Reed's actions in denying his needed pain medication were accomplished in retaliation for his submitting written complaints which detailed their misconduct and incompetence in providing inadequate medical care. (Id. at 29.)
On September 19, 2007, Plaintiff received his surgery related pain medication at 06:30 a.m. but then was transferred to an off-site medical facility for a post-op appointment. (Doc. 23 at 22.) At approximately 2 p.m., Plaintiff returned to the ACH and was seen by Defendant Doe # 2. (Id.) Though Plaintiff was to receive his pain medications at a rate of one dose every six hours, by the time Plaintiff returned to the ACH, Plaintiff had not been provided his pain medication for almost eight hours. (Id. at 22-23) Plaintiff informed Defendant Doe # 2 that he had not received his pain medication since his morning dose and that he was in severe pain. (Id. at 22) Though Defendant Doe # 2 could have easily verified Plaintiff's prescriptions with computers located in the ACH, Defendant Doe # 2 did not provide Plaintiff his medication. (Id.) In addition, Defendant Clark II was made aware of Plaintiff's return from the off-site appointment and that Plaintiff was complaining that he wanted his prescribed pain medications. (Id. at 22-23.) However, Clark II failed to promptly provide Plaintiff with these medications. (Id.) As a result, Plaintiff did not receive his medications until approximately 4:30 p.m. on September 19, 2007. (Id. at 22-23.) The actions of the various health care providers who acted to deny Plaintiff's pain medication following his surgery, were set in motion by policies supported by Defendants McGuinness, Clark I, and Macalvaine. (Id. at 27.)
In 2008, Plaintiff was diagnosed with degenerative disc disease related to Plaintiff's lower spine and to treat this condition, Plaintiff began receiving a prescription of Tylenol #3 pain medication. (Doc. 23 at 24.) However, on April 21, 2009, Defendant Neubarth discontinued Plaintiff's Tylenol # 3 prescription and instead prescribed an antiseizure medication, Gabapentin. (Id. at 24-26.) During this period, though other treating physicians often reordered the Tylenol #3 medication, on each of these occasions Defendant Neubarth discontinued the medication and reordered the Gabapentin. (Id.) Plaintiff contends that Defendants Kelso, Doe # 1, Cate, McGuinness, Clark I, Adams, R. Lopez, and Neubarth implemented policies for the purposes of conducting experiments on prisoners regarding the effects of Gabapentin following the discontinuing of other prescribed pain medications such as Plaintiff's Tylenol #3 medication.*fn2
In addition, though Plaintiff was apparently seen by Defendant McGuinness for his back problems, McGuinness failed to provide to provide Plaintiff with adequate care medical care. (Doc. 23 at 30.) Also, during this period Defendant Thomas repeatedly failed to ensure that Plaintiff either received his medication or received all of the prescribed dosages of his pain medications for his back. (Id. at 25, 28.)
Finally, Plaintiff generally alleges that prison budget constraints CDCR administrators to develop specific policies to encourage medical providers to reflect deliberate indifference toward the serious medical needs of prisoners. (Id. at 13-15.) These policies were perpetuated by a CDCR system wide "code of silence," designed to encourage violations of prisoner's rights to be inaccurately reported or not reported at all. (Id.)
A. Plaintiff's references to Plata
Plaintiff contend that he is a member of the Plata class action and seeks enforcement of its settlement terms. (Doc. 23 at 23.) Plaintiff may not pursue a claim in this action based on the alleged failure of CDCR officials to comply with the Plata settlement agreement. Remedial orders issued in the Plata case do not provide Plaintiff with an independent cause of action under section 1983 because the orders do not have the effect of creating or expanding Plaintiff's constitutional rights. Cagle v. Sutherland, 334 F.3d 980, 986--87 (9th Cir. 2003) (consent decrees often go beyond constitutional minimum requirements, and do not create or expand rights); Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986) (remedial decrees remedy ...