ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 1 THIRTY-DAY DEADLINE
I. Procedural History, Screening Requirement, and Standard
On April 25, 2012, Plaintiff Melvin Lee Wilson ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging failure to prescribe a higher dosage of time release morphine from February 2012 through April 2012. Compl. at 3-4, Doc. 1.
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 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 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.
Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 677-79; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).
II. Plaintiff's Complaint
In Plaintiff's complaint, he names Dr. Ola, CMO-Igbinoza, and Warden Brazelton, who were employed at Pleasant Valley State Prison ("PVSP"). Compl. at 1-2, Doc. 1. Plaintiff also names the California Department of Corrections and Rehabilitation ("CDCR") and the Attorney General for the State of California. Id.
In Plaintiff's complaint, he alleges claims originating from February 2012 to April 2012, and fails to attach page two (2) of the standard complaint form, which questions whether he exhausted his administrative remedies prior to the filing of the complaint. See id. at 1-2, 4, Doc. 1.*fn1
Plaintiff states he has a number of serious health problems. Id. at 3. He is a sixty year old male with two previous heart attacks, congestive heart failure, a stroke on the left side that will require left hip replacement, degenerative disc disease, and peyronie's disease. Id. Plaintiff's lower torso is constantly in pain. Id. At the beginning of February 2012, Plaintiff was seen by Dr. Ola. Id. Plaintiff explained to Dr. Ola that prior to being in custody, he took a muscle relaxer and vicodin, which relieved his pain and allowed him to walk only with a cane. Id. Now Plaintiff can barely walk, even with the aid of a walker. Id. Plaintiff repeatedly notified medical of the seriousness and severity of his pain. Id. At one point, Plaintiff broke down, cried, and begged Dr. Ola to show some compassion. Id. Dr. Ola prescribed tylenol with codeine even though Plaintiff made Dr. Ola aware that he does not tolerate codeine. Id. It causes Plaintiff to vomit. Id. At one point, Plaintiff lost eight pounds in one week. Id. Dr. Ola then finally changed his prescription to 15mg morphine instant release. Id. Plaintiff explained that he needs time release and a higher dosage to cope with his multiple health issues. Id. Then with no explanation, Dr. Ola stopped his morphine and put him back on tylenol, which he has problems tolerating. Id. at 3-4. Dr. Ola is fully aware of this. Id. at 4. Dr. Ola has failed to treat and has shown deliberate indifference to Plaintiff's many requests for treatment. Id. Plaintiff has made Dr. Ola aware of the problem from February 2012 to April 2012.
Id. Due to the cruel indifference to Plaintiff's pain, he was unable to do cardio exercises recommended by his cardiologist. Id. This places Plaintiff's cardio health at risk. Id. Dr. Ola failed to address Plaintiff's pain in a meaningful way; has repeatedly ignored Plaintiff's requests for help; and showed deliberate indifference and subjected Plaintiff to cruel and unusual punishment. Id. Dr. Ola began retaliating against Plaintiff when Dr. Ola became aware of the pending legal action and threatened to discontinue all of Plaintiff's pain medication if he proceeded. Id. Witnesses can verify this. Id. Plaintiff may be in error on this point due to his limited access to information, but Plaintiff cannot find evidence of him being a licensed physician in California. Id. Dr. Ola and the CDCR conspiring to deceive patients by holding Dr. Ola out to be doctor and committing blatant fraud. Id. at 5.
For relief, Plaintiff seeks a complete investigation into Dr. Ola's treatment and conduct toward Plaintiff by a medical licensing agency; one million dollars ($1,000,000) in damages; and medical treatment by an ...