ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED / THIRTY-DAY DEADLINE Doc. 1
I. Procedural History, Screening Requirement, and Standard
On November 28, 2011, Plaintiff Tracy Taylor ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging failure to provide orthopedic boots from the vendor of Plaintiff's choice and denial of orthotics and orthopedic slippers on the grounds that medical staff has not established medical necessity. Compl. at 5-6, 8, Doc. 1.
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 Complaint
In Plaintiff's complaint, he names Defendants Matthew Cate, Secretary of the Department of Corrections and Rehabilitation; C. Hammond, Staff Services Manager, Appeals Examiner; C. K. Chen, Medical Doctor; J. Akanno, Medical Doctor; S. Schaefer, Medical Doctor; and T. Brewer, Chief Executive Officer for the medical Department at Kern Valley State Prison ("KVSP"). Compl. at 1-3, Doc. 1.
From 1997 through 2006, Plaintiff has been able to receive boots and arch supports through the vendor of his choice. Id. at 5. On July 1, 2009, Plaintiff was housed at Pelican Bay State Prison and received tennis shoes and arch supports, which the podiatrist passed off as boots. Id. at 4. Plaintiff was housed in administrative segregation at KVSP, and during a cell search, prison officials confiscated and destroyed Plaintiff's arch supports. Id.
On October 28, 2010, Plaintiff filed a 602 inmate appeal, stating that the prison shoes the podiatrist issued to Plaintiff were ineffective and had been confiscated by prison officials. Id. On December 24, 2010, Dr. Akanno and Dr. Schaefer interviewed Plaintiff regarding his 602 inmate appeal. Id. at 5. Plaintiff told Dr. Akanno and Dr. Schaefer that he is in constant pain and that the shoes he was given were tennis shoes and not boots and Plaintiff needs to reorder orthopedic slippers to walk to the bathroom. Id. Dr. Akanno stated that although prisoners are allowed to purchase boots from the vendor of their choice, he cannot help Plaintiff. Id. Dr. Schaefer told Plaintiff that KVSP does not order orthopedic slippers and that Plaintiff was issued orthopedic boots and orthotics in May 2009 and July 2009. Id. Plaintiff stated his orthotics from July 2009 had been confiscated and the boots are ineffective and that he has been allowed to purchase boots from the vendor of his choice for fifteen years. Id. at 6. On December 27, 2010, Dr. Akanno partially granted Plaintiff's appeal at the first level but denied Plaintiff's requests for a second pair of orthotic boots for work and orthotic slippers. Id. at 32-33. On April 27, 2011, Hammond denied Plaintiff's appeal at the third level of review on the grounds that medical staff has not established medical necessity for new orthotics or to purchase boots from an outside vendor. Id. at 6, 34.
Defendants Hammond, Chen, Akanno, Schaefer, and Brewer violated Plaintiff's right to adequate medical care when they substituted their judgment for a specialist. Id. at 8. Plaintiff attached a medical report by Michael Sayre, M.D., dated September 27, 2006, diagnosing Plaintiff with possible but questionable plantar fasciitis. Id. at 23. Dr. Sayre noted that Plaintiff does not have flat feet or a deformity of the feet. Id.
For relief, Plaintiff seeks compensatory and punitive damages and a permanent injunction to allow Plaintiff to purchase orthotic boots, arch supports, and orthotic slippers from his vendor of choice. Id. at 9.
III. Legal Standard and Analysis for Plaintiff's Claims
A. Eighth Amendment Deliberate Indifference to ...