The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND ECF No. 4 RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Timothy Alan Duke ("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 October 31, 2011, Plaintiff filed a notice of complaint with the Northern District of California. ECF No. 1. On December 2, 2011, Plaintiff filed his complaint. ECF No. 4. On December 13, 2011, the action was transferred to this Court. ECF No. 7.
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 2 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 3 claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 4
A complaint must contain "a short and plain statement of the claim showing that the pleader 5 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 6 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 7 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 8 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 9 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.
Plaintiff is incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff also mentions Corcoran State Prison in his complaint. Plaintiff names as Defendants from PVSP: Doctor Chakatos, Doctor Ho, PA (physician assistant) Fortune. PA Loadholt worked at Corcoran State Prison.
Plaintiff alleges the following. Plaintiff's body is in constant pain after a prison riot that occurred in January 2009. Plaintiff requests the medication that he received while incarcerated at Corcoran State Prison, namely low doses of methadone and norco that worked. Defendant Loadholt doubled the methadone and stopped the 2-phase pain treatment that had really worked previously.
Plaintiff requests as relief the medication that he had previously received.
Plaintiff provides no dates regarding when these events occurred, and fails to link Defendants Chakatos, Ho, or Fortune to an act or omission that would indicate a violation of Plaintiff's federal rights. See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) ("A person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.").
Plaintiff alleges only that Defendant Loadholt, who appears to work at Corcoran State Prison, changed the dosage for Plaintiff's pain medication. The Court ...