The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM MERCED COUNTY (ECF No. 12) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Michael A. Murray ("Plaintiff") is a prisoner 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 August 9, 2011. On April 25, 2012, Plaintiff filed his First Amended Complaint. ECF No. 12.
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, 678 (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 to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of First Amended Complaint
Plaintiff is incarcerated at John Latorraca Correctional Center in El Nido, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: Mark Pazin, head sheriff of the Merced County Sheriff's Department; the County of Merced Board of Supervisors; Merced County Jail Sheriff's Department; Amanda Gibson, medical program manager of the California Forensic Medical Group for Merced County Jail; Dr. David, medical doctor; nurses Debbie and Dave, RNs; and Deputy Saldana.
Plaintiff alleges the following. On March 21, 2011, March 30, 2011, July 15, 2011, July 22, 2011, and July 24, 2011, Plaintiff wrote medical grievances complaining about not receiving appropriate medication and treatment for his right shoulder. Plaintiff complained of being over-charged for his medical treatment, such that he is charged $3.00 co-pay for what he considers to be follow-up treatment. Plaintiff was referred to see an orthopedic doctor, however, medical staff kept avoiding treatment for Plaintiff. On July 13, 2011, Plaintiff's pain medication was revoked. Plaintiff is in constant pain.
Plaintiff refers to his exhibits as support for his allegations. Defendant Gibson, the medical program manager, responded to Plaintiff's grievances filed March 21, July 15, July 22, and July 24. She referred Plaintiff to submitting a sick call slip regarding Plaintiff's complaints of lack of medical care.
On July 13, 2011, Defendant Saldana conducted a cell search of Plaintiff's cell and found Plaintiff's pain medication. Defendants Saldana, Dave, and Debbie stopped Plaintiff's pain medication. Plaintiff repeatedly requested an appointment to see an orthopedic doctor for his shoulder but has not been seen. On July 22, 2011, Plaintiff was seen by a medical doctor, who promised to prescribe pain medication for Plaintiff, namely ultratram, bacafin, and naproxen. However, on July 24, 2011, Plaintiff only received a prescription for ibuprofen, which Plaintiff says was previously demonstrated to not help treat Plaintiff's pain. Plaintiff filed an inmate grievance on July 27, 2011, repeating his previouscomplaints of lack of adequate pain medication and non-referral to an orthopedic doctor.
Plaintiff contends a violation of the Eighth Amendment and medical malpractice. Plaintiff requests declaratory relief, compensatory and punitive damages, injunctive relief for better and adequate treatment, and court costs.*fn1
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." ...