The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND ECF No. 6 RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Robert E. Coleman ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On September 10, 2012, Plaintiff filed his Complaint. On October 11, 2012, Plaintiff filed his First Amended Complaint. ECF No. 6.
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. Id. § 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." Id. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader 2 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 5 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 6 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 7 allegations are accepted as true, legal conclusions are not. Id. 8
II. Summary of Complaint 9
Plaintiff was incarcerated at California State Prison-Corcoran ("CSP-COR") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendant J. Moon, medical doctor.
Plaintiff alleges the following. Plaintiff informed Defendant Moon in 2008 about his eye condition and how previous doctors had ordered to have his left and right eye pteryguim "shaved off." Defendant Moon referred Plaintiff for evaluation by an ophthalmologist on September 15, 2008. On December 29, 2008, Plaintiff was transported to an off-site clinic because CSP-COR did not have such a physician. Dr. Yaplee, the clinic ophthalmologist, recommended surgery. On February 10, 2009, Plaintiff was transported back to the off-site clinic and the surgery was performed on his right eye.
Dr. Yaplee warned Plaintiff of the importance of applying eye medication to his right eye. The eye medication was given to him by CSP-COR medical staff. Plaintiff alerted the nurses upon his arrival regarding his prescribed medication. The nurse told Plaintiff that they did not have his medication, but they would check up on it with the unit doctor, Defendant Moon. Several days elapsed without Plaintiff receiving his eye medication. Plaintiff alerted prison nurses of the excruciating pain in his right eye. The nurse again told Plaintiff that they did not have any medication for him, and that the unit doctor was made aware of his situation.
On February 13, 2009, Plaintiff was transported back to Dr. Yaplee for follow-up care. Plaintiff made Dr. Yaplee aware of Plaintiff's situation. Dr. Yaplee re-ordered the medication, and it was finally give to Plaintiff on February 14, 2009. The medication however had little effect.
On February 24, 2009, Plaintiff complained of vision impairment and pain. Plaintiff filed a 2 health care services medical request form. On March 13, 2009, Plaintiff was transported back to the 3 off-site clinic. Dr. Yaplee extended the medication. Dr. Yaplee informed Plaintiff that his left eye 4 pteryguim surgery would be performed once prison staff made such arrangement, which did not 5 occur. 6
Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages. 8
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." ...