The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS THIRTY-DAY DEADLINE
Plaintiff William Atcherley ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 28 U.S.C. § 1983. Plaintiff filed his complaint on February 17, 2012. Plaintiff names the following Defendants: Edgar Clark, M.D., Glenn Thiel., M.D., CEO Macias, R.N. Holt, R.N. Ceballo, R.N. Anderson, R.N. Barbolla, L.V.N. Arbadia, L.V.N. Ross, Correctional Officer J. Rios, Correctional Officer J. Torres, Pacific Orthopedic and Clement Alade, M.D.
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; 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, 297 F.3d at 934. Plaintiff must present 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.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at Kern Valley State Prison. The events complained of occurred while he was housed at Corcoran State Prison ("CSP")
On January 13, 2011, Defendant Alade performed arthroscopic surgery on Plaintiff's left knee at Pacific Orthopedic.*fn1 Defendant Alade ordered a wheelchair for Plaintiff for two weeks, and ordered that his dressing be kept clean and dry until his next appointment.
When Plaintiff arrived back at CSP, he was taken to the CSP emergency room and examined by Defendant Clark. Defendant Clark ordered a wheelchair for Plaintiff for two weeks. He also issued, and approved, a CDC 7410 chrono but failed to give Plaintiff a copy. A copy of the order and chrono were given to Defendant Barbolla, but Defendant Barbolla did not take any action on the order or chrono until after they had expired. Plaintiff was forced to walk everywhere, against doctor's orders, when he was returned to his housing unit.
On January 18, 2011, after Plaintiff was returned to his housing unit, he submitted a request to see the yard nurse or doctor. On January 20, 2011, Plaintiff saw Defendant Holt. Plaintiff alleges that Defendant Holt refused to follow up on the wheelchair/walker problem and used a pair of non-sterile gloves. Defendant Holt touched various items and then, without washing her hands, began removing Plaintiff's bandages. In the process, she accidentally pulled out one of the stiches and his wound began to bleed. Defendant Holt touched the torn stitch with her contaminated gloves, and without cleaning the wound, rewrapped the wound with the same dirty bandage. She secured the old bandage with a new bandage on the outside.
On January 21 and 22, 2011, Plaintiff asked the second and third watch L.V.N.s to change his dirty bandage.*fn2 They refused, stating that they had no doctor's orders to do so.
On January 23, 2011, Plaintiff awoke with yellow drainage running down his leg. He showed this to the second and third watch L.V.N.s, who told Plaintiff that it was normal. An
L.V.N. gave Plaintiff clean bandage material to change his own bandage and told him to submit a form for medical services. Plaintiff contends that the L.V.N. refused to change the bandage and refused to send Plaintiff to the prison emergency room to be seen by the doctor on call.
Also on January 23, 2011, Plaintiff wrote letters to Defendants Pacific Orthopedic, Defendant Alade, Defendant Clark and Defendant Macias about the lack of assistive devices and his developing infection. Plaintiff contends these Defendants were aware of his improper medical care and ignored his letters
On January 24, 2011, the second and third watch L.V.N.s refused to change Plaintiff's bandages without a doctor's order, and refused to send Plaintiff to the prison hospital. These L.V.N.s also refused to give Plaintiff new bandage material.
On January 25 and 26, 2011, Plaintiff saw Defendant Ceballo. He did not have his
wheelchair and walker. Defendant Ceballo changed Plaintiff's dirty bandage and said that the drainage was normal. Defendant Ceballo also said that she would check on the wheelchair.
On January 26, 2011, Defendants Rios and Torres escorted Plaintiff back to his housing unit after medical appointments. Plaintiff fell down, hurt both knees and dirtied the just-changed bandage. Defendants Rios and Torres refused to take Plaintiff back to the clinic because they were too busy.
Plaintiff then asked the second and third watch L.V.N.s to change his bandage, and they refused. They told Plaintiff that it had already been changed and it was not their job to change it. The L.V.N.s would not give Plaintiff bandage material.
On the evening of January 26, 2011, Plaintiff submitted a new request for medical treatment. On January 27, 2011, Defendant Barbolla came to Plaintiff's cell to examine Plaintiff's cell mate. Plaintiff asked her about the wheelchair and she said that he didn't need one. Defendant Barbolla told Plaintiff that if he did need one, he could use the one in the unit.
On January 28, 2011, Plaintiff was again escorted to the clinic without a wheelchair or walker because the unit wheelchair could not be located. Plaintiff saw Defendant Anderson, who changed Plaintiff's bandage and told him that the drainage was not normal. She did not, however, order the L.V.N.s to change his bandages when needed and did not send him to see a doctor.
From January 28, 2011, through February 1, 2011, Plaintiff requested assistance from every L.V.N. who came to his cell door and each refused to help change Plaintiff's bandage without a doctor's order. On January 30, 2011, Plaintiff's leg was swollen from the knee down and the assigned L.V.N. listened to his complaints but left the building without providing assistance.
On January 31, 2011, Plaintiff saw Dr. Galt in the clinic. Dr. Galt removed the two remaining stitches, ordered the wheelchair extended, ordered that the bandage be changed daily and ordered antibiotics. The third watch L.V.N. then refused to change his bandage, stating that the nurse should do it so she could see how his leg was doing.
On February 2, 2011, Plaintiff was examined against by Defendant Holt. Defendant Holt had a doctor look at Plaintiff's knee and he was taken to the prison hospital emergency room. Plaintiff was seen by Dr. Moon, who wanted to admit Plaintiff for IV treatment, but Plaintiff refused.
On February 4, 2011, Plaintiff returned to the hospital and when Dr. Moon saw Plaintiff's knee, he was taken to San Joaquin Hospital and admitted. After testing, Plaintiff was diagnosed with MSSA, septic/emesis arthritis and mild anemia.
On February 11, 2011, Dr. Alade performed a second surgery to clean out the infection caused by "poor wound care." Instead of three small holes in his knee, Plaintiff now had a ten inch scar down the middle of his knee.
On February 19 and 20, 2011, Defendant Ross refused to change Plaintiff's bandage following the second surgery. The daily bandage change was ordered by Dr. Kim on February 17, 2011, when he was released from the prison hospital. Plaintiff alleges that an unknown L.V.N. also refused to change his bandages after the second surgery.
From February 24, 2011, to August 5, 2011, Plaintiff underwent painful physical therapy as he awaited a recommended third procedure on his left knee. Defendant Thiel denied the procedure on an unknown date.
Plaintiff further alleges that Defendants Thiel and Macias were in charge of supervising medical staff, training medical staff, and creating policy.
Based on these allegations, Plaintiff alleges (1) violation of the Eighth Amendment based on failure to protect by Defendants Pacific Orthopedic, Alade, Clark, Thiel, Macias, Holt, Ceballa, Anderson, Barbolla, Rios, Torres, Ross and Doe Defendants; (2) deliberate indifference to a serious medical need in violation of the Eighth Amendment against Defendants Pacific Orthopedic, Alade, Clark, Thiel, Macias, Barbolla, Holt, Ceballa, Anderson, Rios, Torres, Arbadia, Ross and Doe Defendants; (3) cruel and unusual punishment in violation of the Eighth Amendment against Defendants Pacific Orthopedic, Alade, Clark, Macias, Thiel, Holt, Ceballa, Anderson, Barbolla, Rios, Torres, Ross, Arbadia and Doe Defendants; and (4) negligence against Defendants Pacific Orthopedic, Alade, Clark, Thiel, Macias, Holt, Ceballa, Anderson, Barbolla, Arbadia, Ross, Rios, Torres and Doe Defendants.