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. 5 RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Timothy D. Johnson ("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 February 15, 2012, Plaintiff filed his complaint in the Northern District of California. ECF No. 5. On March 30, 2012, Plaintiff's case was transferred to this Court.
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. Id. § 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." Id. § 1915(e)(2)(B)(ii). 4
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 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.
Plaintiff is incarcerated at Avenal State Prison ("ASP") in Avenal, California, where the events giving rise to this action occurred. Plaintiff names as Defendants warden James Hartley, and unknown medical doctors, staff, and correctional officers.
Plaintiff alleges the following. On December 29, 2011, Plaintiff returned to ASP's hospital emergency room after being discharged from Twin City Hospital. ASP doctors and medical staff refused to treat Plaintiff according to Twin City Hospital's orders because the ASP doctor discarded or lost Plaintiff's medical discharge information and x-rays. The ASP doctor tried to send Plaintiff back to his housing unit without treatment, but the transportation officer told the doctor that the Twin City Hospital doctors had diagnosed Plaintiff with pneumonia and major bowel blockage, and had been prescribed Levaquin, taken with water and an enema. ASP doctor gave Plaintiff a measuring cup and told Plaintiff to drink water and that Plaintiff would go to the bathroom in a couple of days.
The ASP doctor contacted another doctor. The ASP doctor then stated that while he would not provide an enema, he would give Plaintiff some medication, a liquid laxative, to be drunk with milk. While drinking the laxative, the ASP doctor, medical staff, and correctional officers made disrespectful statements to Plaintiff. Plaintiff was held at the emergency room until the laxative began to take effect. Plaintiff then asked to use the bathroom, but was told to go back to his housing unit. Plaintiff defecated on himself before arriving at his housing unit. 2
On December 30, 2011, Plaintiff went to the clinic medication window for pickup of the 3 antibiotic prescribed by the doctor. Plaintiff explained to the registered nurse that the antibiotic was 4 not to be taken with milk. The registered nurse told Plaintiff to stop his whining. Plaintiff next 5 requested a roll of toilet paper because he had taken the laxative. The nurse refused to provide 6
Plaintiff with toilet paper. The nurse told Plaintiff to get a note from the doctor if he wanted a roll of 7 toilet paper. Plaintiff then left the window and approached a correctional officer near the clinic, 8 asking for a roll of toilet paper. The correctional officer grabbed his pepper spray canister and told 9
Plaintiff to go back to his building. Plaintiff complied, but defecated on himself again before making it back to his housing unit.
At 10:00 a.m. that day, Plaintiff reported to the ASP emergency room for an appointment. Plaintiff explained to the doctor his situation. The doctor prescribed milk of magnesia and a strong liquid laxative for use that night. She called the yard clinic to tell them to give Plaintiff several rolls of toilet paper, and wrote Plaintiff a note to give to the registered ...