The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (DOC. 64) OBJECTIONS DUE WITHIN FOURTEEN DAYS
Findings and Recommendations
Plaintiff Richard Ernest Anaya ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on September 17, 2009. On October 29, 2009, the Court screened Plaintiff's complaint and dismissed with leave to amend. On November 16, 2009, Plaintiff filed his first amended complaint. On April 13, 2010, the Court screened Plaintiff's first amended complaint and dismissed with leave to amend. On April 29, 2010, Plaintiff filed his second amended complaint. On November 30, 2010, the Court dismissed certain claims, and ordered service of process on Defendants Chen, Herrington, Keldgore, Lopez, and White for violation of the Eighth Amendment and Title II of the Americans with Disabilities Act. On August 10, 2011, Plaintiff was granted leave to file a third amended complaint. On August 26, 2011, Plaintiff filed his third amended complaint. Doc. 54. On October 19, 2011, the Court issued a Findings and Recommendations, recommending dismissal of Plaintiff's third amended complaint for failure to state a claim, with leave to amend.*fn1 On November 3, 2011, Plaintiff filed his fourth amended complaint. Doc. 64.*fn2
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, 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.
II. Summary of Fourth Amended Complaint
Plaintiff is incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants warden Herrington, chief medical officer S. Lopez, medical doctor Chen, medical doctor DiLeo, associate warden Keldgore, and CC II J. White. Plaintiff alleges the following against each Defendant.
On July 13, 2009, Plaintiff was denied single cell status by Defendant Lopez, causing Plaintiff to contract Hepatitis B by using an unsanitary toilet. Pl.'s 4th Am. Compl. ("4AC") 2:23-28. Plaintiff contends that Defendant Lopez knew of the risk to Plaintiff because Plaintiff bleeds when he has a rectal prolapse. Id. at 2:27-1:1. Plaintiff has irritable bowel syndrome, goes into wanton pain when he prolapses, and his lower back goes out, requiring Plaintiff to lay down until the pain passes. Id. at 3:1-4. Plaintiff has incontinence problems, and is required to clean the bathroom area of the cell. Id. at 3:4-11. Plaintiff had received a single cell status chrono from another medical doctor. Id. at 3:11-21. A medical doctor at UC Davis recommended that Plaintiff be placed on single cell status on March 20, 2006. Id., Ex. A at 29-31. On December 18, 2006, another doctor at UC Davis recommended that a grab bar, a rail near the toilet, would remove pressure off of Plaintiff's abdominal area, making it less likely to exacerbate a prolapse. Id. at 6:1-6. Plaintiff arrived at KVSP on January 27, 2009. Plaintiff had received accommodations from medical staff at High Desert State Prison, but was denied such here. Id. at 6:11-20.
Defendant Lopez was responsible for Plaintiff's medical care. Id. at 4:6-8. Defendant Lopez is depriving Plaintiff of strong enough pain medication, such that he is in wanton pain in his right knee, and lower back, and rectal prolapse. Id. Defendant Lopez is disregarding Plaintiff's lower back follow-up care, as recommended by medical personnel at High Desert State Prison, where Plaintiff was previously incarcerated. Id. at 4:16-27. Plaintiff had been previously referred for knee construction surgery on February 2, 2009. Id. at 5:1-6. On July 18, 2011, Plaintiff learned from a knee surgeon at UC Davis that Plaintiff now needs knee replacement surgery. Id. at 5:7-23.
On February 9, 2009, Defendant Chen denied Plaintiff's medical chrono for single cell status, which caused Plaintiff to contract hepatitis B by using an unsanitary toilet. Id. at 7:1-6. Plaintiff's rectal prolapses make him more susceptible to contracting diseases such as Hepatitis B. Id. at 7-11. Defendant Chen disregarded Plaintiff's lower back follow-up care, as recommended by High Desert State Prison medical personnel. Id. at 7:10-21. Defendant Chen did not provide knee surgery for Plaintiff. Id. at 9:15-16.
On February 20, 2010, Defendant DiLeo abruptly had Plaintiff taken off of his pain medication, morphine sulfate, which Plaintiff had been taking for the past two and a half years. Id. at 10:20-28. On February 26, 2010, Plaintiff had a medical emergency because of his extreme pain. Id. Defendant DiLeo examined Plaintiff and discovered that Plaintiff had been taking the medication for a long period of time and should have weaned Plaintiff off the drug rather than abruptly doing so. Id. at 11:1-13. Defendant DiLeo failed to provide knee surgery for Plaintiff. Id. at 12:9-10.
D. Defendants J. White and R. Keldgore
On April 6, 2009, Defendants White and Keldgore were aware of Plaintiff's chrono that Plaintiff should be housed in a single cell. Id. at 12:17-28. Their actions in not complying with the medical chrono caused Plaintiff ...