The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS ECF No. 16 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Plaintiff Kenneth L. Stansbery ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants J. Benak, Muehldorf, Bangi, Curtis Allen, Jack St. Clair, and Matthew Cate for deliberate indifference to a serious medical need in violation of the Eighth Amendment, and state law claims of medical malpractice, negligence, and denial of medical care. Plaintiff filed this action in Tuolomne County Superior Court on July 26, 2011. Defendant Cate removed this action on September 20, 2011 pursuant to 28 U.S.C. § 1441(a), as this Court has original jurisdiction under 28 U.S.C. § 1331. The other Defendants joined in the removal on October 13, 2011. On July 18, 2012, the Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A(a) and dismissed it for failure to state a claim, with leave to amend. ECF No. 15. On August 17, 2012, Plaintiff filed his First Amended Complaint. ECF No. 16.
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 2 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2). 3
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 5
"[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, 6 do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 7
U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual
matter, accepted as true, to 'state a 8 claim to relief that is
plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While
factual 9 allegations are accepted as true, legal conclusions are not.
II. Summary of First Amended Complaint
Plaintiff is incarcerated at Sierra Conservation Center ("SCC") in Jamestown, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: J. Benak, PAC; Muehldorf, RN; Dr. Bangi; Dr. Curtis Allen; Dr. Jack St. Clair, chief medical officer/executive; Director Matthew Cate; and Does 1 through 20.*fn1
Plaintiff alleges the following. On December 16, 2009, Plaintiff met with Defendant J. Benak. Defendant Benak discontinued his prescription for Zovirax. Plaintiff told Defendant Benak that he had been on this medication for three years and without the medication he would break out in lesions that cause pain and discomfort. Plaintiff informed Defendant Benak that he had previously been taken off the medication and that he had broken out in lesions, all of which was recorded in his medical file. Defendant Benak did not review the files, finding that the medication was not medically noted and taking Plaintiff off the medication.
On January 12, 2010, Defendant Bangi evaluated Plaintiff*fn2 . Defendant Bangi re-prescribed Zovirax. Defendant Bangi however did not document lesions and sores.
On January 28, 2010, and February 28, 2010, Plaintiff was seen by Defendant Muehldorf. Defendant Muehldorf examined Plaintiff, but failed to document any sores or lesions. Defendant Muehldorf prescribed rinsing Plaintiff's mouth with salt water, to which Plaintiff did not have access. 2
On February 9, 2010, Plaintiff was again seen by Defendant Bangi, who prescribed 3 medication. On February 12, 2010, Plaintiff signed for and received a 30-day supply of Zovirax. 4
On March 13, 2010, Plaintiff ran out of medication. Defendant Bangi prescribed Famvir, for seven 5 days. Plaintiff found that using Famvir was more effective for treatment of Plaintiff's lesions and 6 sores in his mouth. On April 23, 2010, Plaintiff received a prescription for Acyclovir for 90 days. 7
Plaintiff filed an appeal complaining of improper medical care and was seen by Defendant Curtis Allen, acting as Chief Medical Officer on July 13, 2010. Plaintiff complained about why it 9 took so long for Plaintiff to receive his medication. Defendant Allen told Plaintiff that it was an unfortunate delay. Defendant Allen also suggested that Defendant Benak had caused unnecessary harm. Defendant Jack St. Clair answered Plaintiff's appeals, but denied that Plaintiff had suffered harm.
Defendant Matthew Cate is the director and thus is responsible for all medical staff. Defendants Allen and St. Clair are responsible for the ...