The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)
AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
On September 2, 2009, Plaintiff Donnie Ray O'Neal, Jr., a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.) Plaintiff's Complaint is now before the Court for screening.
II. SCREENING REQUIREMENT
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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
III. SUMMARY OF COMPLAINT
The Complaint names the following individuals as Defendants in this action: (1) Director, California Department of Corrections (CDC); (2) K. Allison, Warden, California State Prison, Corcoran (Corcoran); (3) A. Enenmoh, Chief Medical Officer (CMO), Corcoran; (4) T. Byers, Physicians Assistant, Corcoran; (5) M. Crum, Health Care Appeals Coordinator, Corcoran; (6) G. Miller, Health Care Appeals Coordinator, Corcoran; and (7)
R. Rottman, M.D., Corcoran.
Plaintiff alleges the following: On February 25, 2009, Plaintiff entered the specialty clinic at Corcoran for an appointment with an audiologist. (Compl. at 4.) Plaintiff is deaf; his disability is well- documented in medical records. (Id. at 3.) At the clinic Defendant Byers perceived that Plaintiff answered a question while Byers' back was turned, concluded that Plaintiff was not in fact deaf, and revoked Plaintiff's "Disabled Persons Placement." (Id. at 3, 4.) Defendant Enenmoh, as the CMO at Corcoran, is responsible for the conduct of Defendant Byers. (Id. at 7.)
Plaintiff filed a medical complaint against Defendant Byers before the end of February, 2009. (Id. at 4.) On March 27, 2009, Defendant Crum gave an initial response advising that Plaintiff's complaint was being reviewed for sufficiency. On April 17, 2009, a Health Care Appeals notice informed Plaintiff that his complaint was being treated as a Staff Complaint and that Plaintiff would receive a response before April 21, 2009. Defendant Crum notified Plaintiff on May 28, 2009, that the response date had been moved to June 28, 2009, "due to staffing/workload issues." (Id. at 5.)
After the May notice, Plaintiff was seen by an audiologist who reported that Defendant Byers had requested a retest and "different results." (Id.) The audiologist refused and stated that his previous tests were consistent with Plaintiff's medical records. (Id.)
On May 31, 2009, Plaintiff requested that the medical appeals department return Plaintiff's original complaint so that Plaintiff could exhaust his administrative remedies. On June 2, 2009, the appeals office advised that Plaintiff's complaint was still being reviewed. On June 3, 2009, Plaintiff again asked that the complaint be returned and sent this request to Defendant Crum. An appeals office response, dated June 8, 2009, stated that Plaintiff should receive a response by the end of the week. (Id. at 6.)
On July 14, 2009, not having received a response, Plaintiff filed a general complaint against the Health Care Appeals Coordinator for violating Plaintiff's due process rights. On July 24, 2009, Defendant Miller partially granted that complaint and advised that a response to the original February, 2009, complaint would be forthcoming as soon as possible. As of August 25, 2009, Plaintiff still had not received a response. (Id. at 7.) If the response is delayed because CMO ...