The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSINGCOMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND ECF No. 1 RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Roberto Herrera ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On December 12, 2011, Plaintiff filed his complaint. ECF No. 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 2 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 3 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 4 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 5 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 6 allegations are accepted as true, legal conclusions are not. Id. 7
II. Summary of Complaint 8
Plaintiff is incarcerated at California State Prison, Corcoran ("CSP-Cor") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: L. D. Zamora, health care appeals director's level reviewer for the CDCR, and the Corcoran SHU health care pain committee staff, who are John Doe defendants.
Plaintiff alleges that he suffers from chronic pain and was taking a medicine called tramadol, which helped his pain problem. The prescription expired over a year prior to the filing of the complaint. Since then Plaintiff has suffered from pain and the Corcoran SHU health care pain committee has denied Plaintiff tramadol. Plaintiff was instead prescribed a different medication which does not help Plaintiff's pain. Plaintiff filed a 602 grievance regarding his problem. Defendant L. D. Zamora denied Plaintiff's grievance at the third level.
Plaintiff requests as relief compensatory, and punitive damages, and costs of suit. Plaintiff also requests that he be provided with tramadol. Plaintiff attaches his inmate grievance as an exhibit to this complaint.
Plaintiff's complaint is construed as a claim of deliberate indifference to a serious medical need in violation of the Eighth Amendment. 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)). 2
The deliberate indifference standard involves an objective and a subjective prong. First, the alleged 3 deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing 4 Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know of and 5 disregard an excessive risk to inmate health or safety . . . ." Id. at 837. 6
"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this 7 standard, the prison official must not only 'be aware of the facts from which the inference could be 8 drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'"
Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. ...