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 January 17, 2012, Plaintiff Clay Edward Lopez, 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. 5.) 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: (1) Dr. S. Shiesha, Chief Physician and Surgeon; (2) Dr. M. Ross; (3) LVN Baker; (4) M. Thompson; (5) Sergeant Langham; (6) M. Stainer, Warden; (7) John Doe #1, R.N.; (8) John Doe #2, R.N.;
(9) John Doe #3; and (10) Gonzalez, Warden.
Plaintiff alleges the following: On August 5, 2009, Plaintiff injured his neck, left shoulder, and left arm while working in the laundry room. John Doe #3 issued "Naproxen" and granted Plaintiff a four day leave from work. The next day Defendant Thompson, the laundry room supervisor, asked Plaintiff to sign an incident report. Plaintiff noticed that the report was not filled out, refused to sign, and sought assistance from Defendant Langham. Defendants Langham and Thompson spoke and afterwards Langham told Plaintiff that a report would be filed noting Plaintiff's bad attitude and refusal to sign. (Compl. at 7.) Plaintiff unsuccessfully requested copies of his Workers' Compensation Report. On August 24, 2009, after applicable state deadlines had passed, Plaintiff was given an opportunity to review limited documentation. On September 9, 2009, Plaintiff was notified that his workers' compensation claim had been denied. Defendant Thompson failed to submit the necessary documentation within the twenty-four hour deadline. Thompson also failed to include the fact that Plaintiff required time off of work because of his injury. (Id. at 8.)
On July 1, 2011, Plaintiff met with Defendant Ross regarding residual pain from the August 5, 2009 injury. (Id. at 8, 9). Plaintiff requested treatment for sleeplessness and extreme pain and limited mobility in his left arm. Plaintiff suspected that he was suffering from a nerve condition. Dr. Ross disagreed and determined Plaintiff's symptoms to be arthritis related. (Id. at 4.) A second physician who saw Plaintiff on July 17, 2011, thought that Plaintiff might be suffering from a nerve problem. This second doctor prescribed medication and ordered Plaintiff have a lower tier bunk. However, Dr. Ross was Plaintiff's primary care physician and ultimately controlled Plaintiff's care. (Id. at 4, 5.)
On August 7, 2011, Plaintiff told Correctional Officer Fuller that Plaintiff was unable to move his neck or get out of bed. (Id. at 5.) Fuller repeatedly called on John Doe #2 in the medical department to send medical staff to Plaintiff's cell. (Id. at 12.) John Doe #1, the responding nurse, arrived more than three hours after Fuller's first call. Doe #1 threatened disciplinary measures if Plaintiff did not get out of bed so she could examine him. Plaintiff stated that he could not get out of bed; a stretcher was then used to remove Plaintiff. Doe #1 administered medication according to instructions provided by the on-call physician, who also believed Plaintiff was suffering from a nerve problem. (Id. at 5.)
Dr. Ross saw Plaintiff the following morning and agreed that Plaintiff may have been suffering nerve problems but refused to begin treating Plaintiff accordingly. Plaintiff filed a medical appeal on August 9, 2011, with Defendant Shiesha, asking for an M.R.I., treatment outside the prison, and pain management. (Id. at 6.)
On August 16, 2011, Plaintiff experienced limited range of head and left arm motion. Defendant Ross examined Plaintiff and observed that Plaintiff's left arm had become smaller than his right. Dr. Ross determined the cause to be muscle spasms and nerve constriction. Plaintiff was sent to a community hospital outside the prison where an M.R.I. revealed "extensive nerve damage in cervical spine area." (Id. at 4.) Surgery was recommended; however, according to the hospital discharge summary dated August 18, 2011, Plaintiff "did not want to go for surgery since he was already getting better and preferred conservative measures." (Id. at 32.) The attending physician prescribed medication. (Id. at 33.) Plaintiff returned to prison and was put on a pain management program, given a neck brace, and assigned to limited work duty. (Id. at 4.)
On August 23, 2011, Defendant Baker asked Plaintiff to sign off on the August 9, 2011, medical appeal to acknowledge that Plaintiff had received the medical care requested. Plaintiff refused and Baker threatened to issue a negative report stating that Plaintiff's original appeal was an attempt to manipulate staff and escape prison. (Id. at 6.) Plaintiff filed an appeal on August 25, 2011, regarding Defendant Baker's conduct. (Id. at 20.)
Defendant Shiesha was aware that Defendant Ross and the John Does were capable of the aforementioned conduct but nevertheless permitted the Defendants to remain in their positions and commit the alleged violations. Defendants Gonzalez and Stainer, as Wardens, knew that Defendants Langham and Thompson were likewise capable and likely to act as described, yet failed to remove them from their positions.
Plaintiff asserts that the aforementioned conduct violated his rights to adequate medical care, freedom from threats and intimidation, and due process.
To state a claim under Section 1983, a plaintiff must allege two ...