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 (ECF No. 1) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Kenneth Lee Stansbery ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants J. Benak, Muehldorf, Bangi, Curtis Allen, Jack St. Clair, and Matthew Cate for deliberate indifference to a serious medical need in violation of the Eighth Amendment, and state law claims of medical malpractice, negligence, and denial of medical care. Plaintiff filed this action in Tuolomne County Superior Court on July 26, 2011. Defendant Cate removed this action on September 20, 2011 pursuant to 28 U.S.C. § 1441(a), as this Court has original jurisdiction under 28 U.S.C. § 1331. The other Defendants joined in the removal on October 13, 2011. Plaintiff's complaint is presently before the Court for screening.
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).
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 Sierra Conservation Center ("SCC") in Jamestown, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: J. Benak, PAC; Muehldorf, RN; Dr. Bangi; Dr. Curtis Allen; Dr. Jack St. Clair, chief medical officer/executive; Director Matthew Cate; Does 1 through 6, successors to Defendant Cate; and Does 7 through 20, all other individuals responsible for medical of inmates at SCC.
Plaintiff alleges the following. On December 16, 2009, Plaintiff met with Defendant J. Benak for orientation health screening. Pl.'s Compl. ¶ 12. Defendant Benak noted that Plaintiff had herpes simplex virus. Id. Defendant Benak discontinued his prescription for Zovirax. Id. Plaintiff told Defendant Benak that he had been on this medication for three years and without the medication he would break out in lesions that cause pain and discomfort. Id. Plaintiff informed Defendant Benak that he had previously been taken off the medication, in July of 2007, and that he had broken out in lesions, all of which was recorded in his medical file. Id. Defendant Benak did not review the files, finding that the medication was not medically noted and taking Plaintiff off the medication. Id.
On January 12, 2010, Defendant Bangi evaluated Plaintiff. Id. ¶ 13. Plaintiff complained that Defendant Benak had taken Plaintiff off of Acyclovir and/or Zovirax and showed Defendant Bangi the lesions in his mouth and other areas. Id. Plaintiff explained that the lesions made it difficult to eat and would bleed during brushing of his teeth, causing pain. Id.
Defendant Bangi noted Plaintiff's chronic herpes simplex virus types 1 and 2 for several years. Id. Defendant Bangi prescribed Acyclovir twice a day for 180 days, and requested that Plaintiff be scheduled for a follow-up in 90 to 120 days. Id. On January 22, 2010, Plaintiff was again seen by Defendant Bangi, complaining that he had not received the medication. Id. Defendant Bangi explained that the pharmacy had no 400 mg tablets, and would use the non-formulary 200 mg dosage instead. Id. Defendant Bangi did not document Plaintiff's sores or lesions, and Plaintiff was sent back to his dorm. Id.
On January 28, 2010, Plaintiff was seen by Defendant Muehldorf.*fn1 Id. ¶ 14. Defendant Muehldorf examined Plaintiff, but failed to document any sores or lesions. Id. Defendant Muehldorf advised Plaintiff to rinse his mouth with salt water, which Plaintiff did not have. Id. Plaintiff explained that he had not received his medication as prescribed by Defendant Bangi on January 22, 2010. Id. Defendant Muehldorf informed Plaintiff that the pharmacy was having problems getting Plaintiff's medication and told him to continue going to the pill line until he received it. Id. Defendant Muehldorf scheduled another appointment within two weeks. Id. Plaintiff was sent back to his dorm without any other resolution to his complaint. Id.
On February 9, 2010, Plaintiff was again seen by Defendant Bangi, and complained of his lack of medication. Id. ¶ 15. Defendant Bangi stated that the pharmacy would fix the problem because Plaintiff's medication was now available. Id. Plaintiff was prescribed Acyclovir 200 mg for 90 days. Id. On February 12, 2010, Plaintiff signed for and received a 30-day supply of Zovirax, as the generic brand was not available. Id. ¶ 16. On March 13, 2010, Plaintiff ran out of medication. Id. ¶ 17.
On April 9, 2010, Plaintiff complained of sores in his mouth causing pain. Id. ¶ 18.
Defendant Bangi examined Plaintiff's mouth and noticed an ulcerous lesion. Id. Defendant Bangi made a non-formulary*fn2 request for Famvir, two times a day for seven days, to treat acute outbreak of herpes simplex virus. Id. Plaintiff found that using Famvir was more effective for treatment of healing ulcer lesions and sores. Id. ¶ 19. On April 23, 2010, Defendant Bangi prescribed 200 mg of ...