The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
SECOND SCREENING ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983, AND DENYING AMENDED IN FORMA PAUPERIS MOTION AS MOOT (Docs. 9 and 10)
ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G)
I. Screening Requirement and Standard
Plaintiff Charles Holt, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 23, 2010. On January 4, 2012, the Court dismissed Plaintiff's complaint, with leave to amend, for failure to state a claim under section 1983. On February 3, 2012, Plaintiff filed an amended complaint. Plaintiff alleges that prison officials at California Substance Abuse Treatment Facility and State Prison (CSATF) are violating his rights under the Eighth Amendment of the United States Constitution related to care for Hepatitis C. Plaintiff names Chief Medical Officer A. Enenmoh and Health Care Services Chief J. Walker as defendants.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
II. Eighth Amendment Medical Care Claim
On September 20, 1996, the Hepatitis C virus was detected in Plaintiff's blood, and in May 1997, Plaintiff's lab work was negative for the virus antibody. (Amend. Comp., court record p. 5.)
On May 5, 1997, Plaintiff was placed in the Hepatitis C evaluation and treatment program while at Pelican Bay State Prison. (Id., Amend. Comp., court record p. 4 & Ex. C, court record p. 34.) Plaintiff was told that his case had been reviewed by a panel of physicians and in consultation with a gastroenterologist. (Id.) Plaintiff was informed that not all cases of Hepatitis C respond to anti-viral treatment, the overall long-term response rate to Alpha-Interferon is 15-20%, and in many cases, there is either a contraindication or a very poor chance of a significant response. (Id.) Plaintiff was informed that hopefully, there would be a more satisfactory treatment for chronic viral liver disease in the near future, but none was imminent. (Id.) The memo concluded that Plaintiff did not meet the criteria for Alpha-Interferon treatment. (Id.)
In January 1998, Plaintiff was positive for the virus antibody. (Id., p. 5.) In October 2002, lab worked showed that Plaintiff's viral load was extremely high, as did results from 2003 and 2004. (Id.) At some point, Plaintiff was placed on interferon treatment and he alleges that it ...