The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 13) SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Bennie Mathis ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. No other parties have appeared in this action.
Plaintiff initiated this action on February 29, 2012. (ECF No. 1.) The Court dismissed Plaintiff's original Complaint for failure to state a claim, but gave leave to amend. (ECF No. 11.) Plaintiff has since fled a First Amended Complaint. (ECF No. 13.) Plaintiff's First Amended Complaint is now before the Court for screening
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)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
II. SUMMARY OF PLAINTIFF'S COMPLAINT
Plaintiff is currently housed at San Quentin State Prison. The majority of the events at issue in Plaintiff's First Amended Complaint occurred at Pleasant Valley State Prison ("PVSP"). Plaintiff appears to assert claims under the Eighth and Fourteenth Amendments against the following individuals: 1) J. Chokatos, medical doctor at PVSP, 2) J. Fortune, doctor's assistant and nurse practitioner at PVSP, 3) A. Lonigro, chief executive officer at PVSP, and 4) L. D. Zamora, director level chief of appeals at California Correctional Health Care Services.
Plaintiff's allegations are not clear. Not all are included in the first Amended Complaint, but instead appear dependent in large part on the attached exhibits.
The court summarizes all the allegations as best it can. Plaintiff's allegations are as follows:
Defendants violated Plaintiff's rights by failing to provide him with his prescribed treatment. (Am. Compl. at 3.) Since Plaintiff has a serious spinal condition, he was seen by a neurosurgeon who recommended that Plaintiff be housed in a single cell. (Id. at Ex. C.) On December 18, 2008, the neurosurgeon recommend that Plaintiff receive an "anterior cervical fusion." (Id. at Ex. D.) The neurosurgeon saw Plaintiff again on April 2, 2009, and asked the prison doctors to inform him if Plaintiff wished to undergo surgical intervention. (Id. at Ex. E.) The neurosurgeon saw Plaintiff again on October 8, 2009, and recommended that Plaintiff be single celled because of his condition and also stated that Plaintiff had indicated he did not wish to undergo surgery. (Id.)
Plaintiff was transferred from Folsom State Prison to PVSP on March 23, 2011. (Am. Compl. at 4.) Defendant Chokatos told Plaintiff on June 8, 2011 that Plaintiff would not receive certain recommended accommodations. (Id. at 4, 11.) On August 1, 2011, Defendant Fortune denied approval of Plaintiff's necessary surgery. (Id. at 4, 13.) Defendant Lonigro knew about Defendants Chokatos and Fortune's actions through the appeals process. (Id. at 6.) Defendant Lonigro could have intervened and provided Plaintiff with his necessary accommodations but did not. (Id.) Defendant Tamora reviewed Plaintiff's appeals at the director's level and failed to grant Plaintiff's appeals. (Id. at 9.)
Plaintiff asks for a declaratory judgment, preliminary injunction, for an order that CDCR not retaliate against him, that his medical and disability accommodations be restored, ...