FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF BE DENIED (Doc. 9)
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 14) OBJECTIONS DUE IN FIFTEEN DAYS
John D. Francis ("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 April 17, 2012, Plaintiff filed his original complaint. Doc. 1. On May 24, 2012, Plaintiff filed a motion for preliminary injunctive relief. Doc. 9. On November 2, 2012, the Court screened the complaint and dismissed with leave to amend. Doc. 12. On November 15, 2012, Plaintiff filed the first amended complaint which is currently before the Court. Doc. 14.
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 Pleasant Valley State Prison (PVSP) in Coalinga, California. The events central to Plaintiff's complaint occurred while he was incarcerated at California State Prison, Corcoran in (CSPC) in Corcoran, California.. Doc. 1; Doc. 14. In the complaint, Plaintiff names the following as a defendant in this action: 1) The Federal Receiver;*fn1 2) R. Gill (D.O.); 3) Warden of CSPC; 4) J. Yu (D.O.); 5) Eger Clark (M.D.); 6) C. McCabe (M.D.); 7) W. Ulit (M.D.); 8) B. Burr; 9) L. Karen (M.D.); 10) J. Ruff (Psychologist); 11) Jeffrey J. Wang (C.M.O.); 12) Teresa Macias (C.E.O); and 13) all the doctors on the Medical Authorization Review (MAR) Committee in July 2010 and October 2011. Doc. 1 at 2; Doc. 14 at 3. As relief, Plaintiff asks the court to order that Plaintiff be examined by a pain specialist and order the CDCR to not give Plaintiff medication only to take it away to leave Plaintiff to suffer severe pain and muscle spasms. Doc. 14 at 3. Plaintiff also seeks damages for pain, suffering and mental anguish. Doc. 14 at 3.
Plaintiff alleges that the warden of CSPC and the federal receiver are responsible for the actions of the doctors. Doc. 14 at 3. According to Plaintiff, Defendant Gill gave Plaintiff "Class A" drugs to treat Plaintiff's back and neck. Doc. 14 at 3. Then the drugs were taken away from Plaintiff for no medical reason. Doc. 14 at 3. Plaintiff states that Defendant McCabe knows the extent of Plaintiff's injuries and has refused to treat Plaintiff and allows Plaintiff to endure severe pain. Doc. 14 at 3. According to Plaintiff, Defendant Ulit has given Plaintiff "Class A" drugs periodically to decrease the pain and then denied the drugs for no medical reason, which left Plaintiff in severe pain. Doc. 14 at 3. Plaintiff alleges that Defendant Burr has access to inmates' medical records during the appeals process and has denied all of Plaintiff's grievances and as a result, left Plaintiff in constant and severe pain. Doc. 14 at 3. Defendant Karen also denied Plaintiff's grievances without examining Plaintiff regarding his severe pain. Doc. 14 at 3. Defendant Ruff was a part of the MAR committee and he refused Plaintiff's request for strong pain medication which resulted in Plaintiff suffering pain. Doc. 14 at 3. Defendant Wang also refused to give "Class A" pain medication although all of the other pain medications have failed and Defendant Wang denied Plaintiff's 602 grievances without investigating the facts upon which he relied. Doc. 14 at 3. Plaintiff alleges that on numerous occasions, Defendant Macias denied Plaintiff's 602 grievances regarding Plaintiff's pain and denied these grievances without investigating the facts. Doc. 14 at 3. The denial of these grievances have left inmate in severe pain. Doc. 14 at 3. The doctors on the MAR committee took away Plaintiff's pain medication for no medical reason and left Plaintiff in severe pain. Doc. 14 at 3.
IV. Legal Standard and Analysis
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 omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060).
"Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights." Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (internal quotation marks omitted). Additionally, to state a viable claim, Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934. Liability may not be imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235, and supervisors may only be held liable if they "participated in or directed the violations, or knew of the violations and failed to act to prevent them," Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim," Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical personnel regarding treatment does not amount to deliberate indifference, Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). To prevail, Plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that they ...