FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 30
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
I. Procedural History, Screening Requirement, and Standard
On April 2, 2009, Plaintiff Edward Hewitt ("Plaintiff"), a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On November 13, 2009, the Court issued a screening order, dismissing Plaintiff's complaint, with leave to amend. Doc. 11. On March 29, 2010, Plaintiff filed a first amended complaint. Doc. 16. On December 7, 2010, the Court issued a screening order, dismissing Plaintiff's first amended complaint, with leave to amend. Doc. 19. On April 18, 2011, Plaintiff filed his second amended complaint. Doc. 22. On May 25, 2011, the Court issued a screening order, dismissing Plaintiff's second amended complaint, with leave to amend. Doc. 23. On October 25, 2011, Plaintiff filed his third amended complaint. Doc. 30.
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).
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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.
While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 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.
Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
II. Allegations in Plaintiff's Third Amended Complaint
In Plaintiff's third amended complaint, he names Defendants Merced County; Merced County Jail; Merced County Sheriff's Department Medical Staff; Does 1 through 50; Dr. Syria; Sean Ryan; and Dr. David. 3d Am. Compl. at 1-3, Doc. 30. Plaintiff alleges that on May 7, 2007, he had extreme and excruciating pain in his back, legs, fingers, hips, left shoulder, hands, ankles, wrist, right knee as well as headaches. Id. at 4. He requested medical help through sick call slips but was ignored by Merced County Sheriff Department's medical staff. Id. On May 13, 2007, Plaintiff was still in constant pain and finally given 500 mg of Naproxen by Dr. David with the Merced County Sheriff's Department. Id. Plaintiff requested stronger medication, an x-ray, and an MRI but no medical treatment was given. Id. On June 8, 2007, Plaintiff notified Dr. Syria about his medical condition and intense pain and requested medical attention from Dr. Syria at the Merced County Sheriff's Department, but he was refused. Id. at 5. In July 2007, Plaintiff was given 750 mg of mehorenol. Id. In August 2007 and September 2007, Plaintiff continued to experience pain and became unable to walk or get out of bed. Id. He renewed his requests for x-rays, an MRI, physical therapy, and other medical treatment but Merced County Sheriff's Department Medical Staff refused to increase his pain medication or give other treatment. Id. at 5-6. In September 2007, Plaintiff developed a rash that spread to most of his body. Id. at 6. Plaintiff submitted several sick call slips but there were denied or ignored because no medical appointments were given. Id. From October 2007 through February 2008, Plaintiff was denied medical treatment despite complaining of headaches, extreme pain in his extremities, sore ankles, and pain in his chest and shoulder. Id. Plaintiff's degenerative joint disease went undetected and untreated during Plaintiff's incarceration at Merced County Jail. Id. at 8. For relief, Plaintiff seeks general damages of $1,000,000; specific damages of $1,000,000; and punitive damages of $2,000,000. Id. at 3.
III. Legal Standard and Analysis for Plaintiff's Claims
A. Eighth Amendment Deliberate Indifference to Serious Medical Need
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting ...