The opinion of the court was delivered by: United States Magistrate Judge Michael J. Seng
ORDER DISMISSING PLAINTIFFS'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Marvin Berrios ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff initiated this action on August 26, 2011. (Compl., ECF No. 1.) No other parties have appeared in this action. Plaintiff's Complaint is now before the Court for screening.
For the reasons set forth below, the Court finds that Plaintiff's Complaint fails to state a claim. Plaintiff will be given leave to amend.
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, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic 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.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
II. SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff is currently housed at Kern Valley State Prison. He previously was housed at California State Prison, Corcoran ("CSP") where most of the events at issue in his Complaint occurred. Plaintiff sues the following individuals for unlawful retaliation under the First Amendment and inadequate medical care under the Eighth Amendment: 1) Dr. J. Bondoc, Plaintiff's primary care physician at CSP, 2) Dr. Edgar Clark, acting Chief Medical Officer at CSP, 3) Dr. Teresa Macias, Chief Medical Officer, and 4) John Doe.
Plaintiff asks for a declaratory judgment, for a temporary restraining order and preliminary injunction, that he be appointed counsel, for monetary damages, and for litigation costs.
Plaintiff alleges as follows:
Plaintiff is paralyzed from the waist down as a result of a gun shot wound he received in 1994. (Compl. at 4.) Due to the injury, he suffers from a neurological pain disorder. (Id.) Plaintiff was supposed to have a morphine pain pump implanted during surgery in 2007, but was told after the surgery that a "nerve stimulator/nerve regenerator" had been implanted. (Id. at 5.)
After surgery, Plaintiff started to experience pain. (Compl. at 5.) He filed approximately forty-two health care service request forms attributing the pain to the nerve stimulator, complaining that the nerve stimulator was malfunctioning, and asking that the nerve stimulator be removed. (Compl. at 5.) Defendant Bondoc was his primary care physician during this time period. (Id.) Several times Plaintiff's pain was so severe that he was thrown out of his wheelchair and ended up crying on the floor. (Id. at 6.) Defendant Bondoc saw some of these incidents. (Id.) During every visit Defendant Bondoc said there was nothing wrong with Plaintiff. (Id.)
Plaintiff began complaining about the implant pain on January 13, 2008, but was not x-rayed until 90 days later. (Compl. at 7.) The technician who took the x-rays mis-diagnosed the cause of Plaintiff's pain as constipation. (Id.) Plaintiff did not make regular bowel movements, but according to Plaintiff the pain was due to the implant. (Id.) The technician negligently failed to check for an implanted device as directed. (Id.)
Plaintiff was given another x-ray on June 18, 2008, but, according to Dr. Pineda, the results were unclear. (Compl. at 7.) Dr. Pineda reviewed the records, and found that there might be something near the inguinal area. (Id.) An August 28, 2008, the wrong area of his body was x-rayed. (Id. at 8.)
Plaintiff filed a "citizens complaint" and twelve appeals against Defendant Bondoc. (Comp. at 8.) All were denied. (Id.) The appeals coordinator at CSP abused his authority by preventing Plaintiff from proceeding on his appeals. (Id. at 8-9.)
On approximately February 20, 2009, Plaintiff was transferred to High Desert State Prison. (Compl. at 9.) Plaintiff filed a grievance there and told his nerve stimulator would be removed. (Id.) Plaintiff was transferred back to CSP ...