The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This complaint was docketed in the Northern District of California on August 3, 2012, and transferred to this court on October 25, 2012. ECF Nos. 1, 6-7. It was reassigned to the undersigned by order filed on November 19, 2012, pursuant to Local Rule 302 and 28 U.S.C. § 636(b)(1). ECF No. 9.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), 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, 89 S.Ct. 1843 (1969).
This case arises from the alleged misdiagnosis of plaintiff's medical condition (lupus) and ensuing improper medical treatment, including an unnecessary splenectomy. Plaintiff expressly alleges medical negligence as the basis for his claims. Complaint (ECF No. 1-1) at 12-14. The negligence allegations are then incorporated into plaintiff's Eighth Amendment causes of action. Complaint (ECF No. 1-1) at 15-16. Plaintiff also presents pendent state claims for negligence and medical malpractice. Complaint (ECF No. 1-1) at 17.
Plaintiff names nearly twenty defendants, mostly doctors but also two non-prison health care facilities, the secretary of the CDCR, the State of California and two wardens. Plaintiff alleges that on November 30, 2009, while housed at Folsom State Prison (FSP), he was given a CBC*fn1 test at the behest of defendant Warden Cardeno, due to unexplained bruising and flu-like symptoms. Following the test, plaintiff was rushed to the FSP emergency room where he saw defendant Dr. Dunlap, who explained that his platelet count was critically low. Plaintiff was then taken on the same day to defendant Doctors Hospital of Manteca (DHM), where he was informed that he had been diagnosed with Idiopathic Thrombocytopenic Purpura (ITP). Plaintiff was provided treatment and several medications for ITP and was released back to FSP on December 4, 2009. ECF No. 1-1, pp. 1, 3-7, 32.
Plaintiff returned to DHM on February 25, 2010. Upon his return to FSP, he was transferred to California Medical Facility-Vacaville (CMF) so his illness could be better monitored. Plaintiff was transferred by defendants CDCR Secretary Cate, Cardeno, and Dunlap to the care and custody at CMF of defendants CMF Warden Singh, Dr. Bick and Dr. Richman on April 12, 2010. Defendant Richman became his hematologist. On April 29, 2010, plaintiff had a bone marrow biopsy and after seeing defendant Richman again, was told he was given an Antinuclear Antibody Test (AAA Test). On June 2, 2010, plaintiff alleges that the defendants State of California, Cate, Bick and Richman "negligently transferred" him to defendants Queen of the Valley Medical Center (QVMC) and the care of defendant Drs. Umutyan, Loftus, Chough, Adhye, Dugan, Tan, Jensen and Paredes. ECF No. 1-1, pp. 7-8.
Plaintiff alleges that defendant Richman failed to administer the "aforementioned tests," id. at 8*fn2 , and sent plaintiff out to defendant QVMC for a consultation regarding a possible splenectomy. When plaintiff explained to the surgeon, defendant Loftus, that he was not there for a splenectomy but only to discuss whether this surgery was his only option, Loftus referred plaintiff to defendant Umutyan, the on-call hematologist. Defendant Umutyan told plaintiff that a splenectomy was not his only option to treat his ITP condition, and discussed other options involving oral medications and injections. Plaintiff underwent four cycles of rituximab and his platelet count stayed within the normal range for about four or five months. Id. at 8-10.
Plaintiff then claims that defendants California, Cate, Bick and Richman "negligently transferred" him, on August 10, 2010, back to defendant QVMC and the care of defendants Umutyan, Loftus, Chough, Adhye, Dugan, Ian, Jensen and Paredes. After a CBC test, it was determined that plaintiff had relapsed and his platelets had dropped again. Plaintiff was admitted and defendant Umutyan prescribed once-a-week injections for several months, which were not successful. After having been admitted to defendant QVMC during this period from six to twelve times, defendant Umutyan told plaintiff his only chance for a cure was a splenectomy. When plaintiff asked if he might not have some other illness, defendant Umutyan assured him that he had ITP. Defendant Umuytan explained that because of his lower than normal platelet count, plaintiff's surgery would be risky and he might require a platelet transfusion. Plaintiff, fearful of invasive surgery, asked for another bone marrow biopsy or other test ...