ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1 AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Maria Silvas ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis, in this civil rights action pursuant to 42 U.S.C. § 1983. On July 7, 2011, Plaintiff filed her original complaint which is currently before the Court. Doc. 1.
II. Screening Requirement
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, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
III. Plaintiff's Complaint
Plaintiff is currently a state prisoner at Valley State Prison for Women (VSPW) in Chowchilla, California. The events central to Plaintiff's complaint occurred while she was a prisoner at VSPW. Doc. 1. In the complaint, Plaintiff names the following individuals as defendants in this action: 1) Chowchilla State Prison; 2) Hill (Nurse at VSPW); 3) Royal (Nurse at VSPW); 4) Cheema (Nurse at VSPW); and 5) Does 1 through 4. Doc. 1 at 1. Plaintiff seeks compensatory damages. Doc. 1 at 2.
Plaintiff alleges that on the morning of November 8, 2010, Defendant Hill gave Plaintiff the wrong medication and then gave Plaintiff her mental health medication. Doc. 1 at 3. According to Plaintiff, Defendant Hill did not ever check her vitals or otherwise see how Plaintiff was feeling. Doc. 1 at 3. On November 9, 2010, Defendant Royal gave Plaintiff the wrong medication around 8:15 a.m. Doc. 1 at 3. At 9:15 a.m. Correctional Officer Auburn and Correctional Officer Mora escorted Plaintiff to get her vitals taken. Doc. 1 at 3. At around 3:20 p.m. Plaintiff felt very nauseous and dizzy and notified Correctional Officer Garcia and Correctional Officer Haynes. Doc. 1 at 3. At 3:45 p.m. Correctional Officer Garcia and Correctional Officer Haynes escorted Plaintiff to have her vitals taken. Doc. 1 at 4.
On November 10, 2010, Defendant Cheema asked Plaintiff how she was feeling. Doc. 1 at 4. Plaintiff informed Defendant Cheema that she felt nauseous and very dizzy. Doc. 1 at 4. Defendant Cheema told Plaintiff not to worry and that it should go away in a few days. Doc. 1 at 4. Defendant Cheema said that she would return to check on plaintiff, however, did not. Doc. 1 at 4. On November 17, 2010, a medical emergency was called because Plaintiff became paralyzed and could not move. Doc. 1 at 4. Sergeant Torres and Nurse Camron lifted Plaintiff into a wheel chair. Doc. 1 at 4. Then Plaintiff was escorted to building 805. Doc. 1 at 4. Plaintiff was never checked by a doctor and she was given Aleve and returned to her cell. Doc. 1 at 4.
Correctional officers Garcia and Loveall escorted Plaintiff and witnessed the degree of pain Plaintiff was experiencing. Doc. 1 at 4. According to Plaintiff, the Aleve did not help, she was in severe pain and could not move for three to four days. Doc. 1 at 4. On December 1, 2012, Plaintiff asked Defendant Hill why he did not report that he had given her the wrong medication and informed him that she was going to file a grievance against him. Doc. 1 at 4-5. On December 15, 2010, Defendant Cheema spoke with Plaintiff about the grievance and asked why Plaintiff was accusing Defendant Hill when it was really Defendant Royal who gave Plaintiff the wrong medication. Doc. 1 at 5. Plaintiff responded that Defendant Hill was at fault because he did not report the mistake. Doc. 1 at 5. Defendant Cheema stated that Defendant Royal has taken Plaintiff's vitals four times on December 9, 2010. Doc. 1 at 5. Plaintiff responded that was not true. Doc. 1 at 5.
Around December 15, 2010, Plaintiff asked Defendant Royal why she stated she had taken Plaintiff's vitals four times when she only took them twice. Doc. 1 at 6. According to Plaintiff, the doctor ordered them to be taken four times. Doc. 1 at 6. According to Plaintiff, Defendant Royal states "I sure am fucking up aren't I? That's false documentation isn't it?" Doc. 1 at 6. On January 3, 2011, Plaintiff finally saw a doctor about her grievance. Doc. 1 at 6.
A. Eighth Amendment Deliberate Indifference of medical treatment
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations ...