COLIN M. RANDOLPH, Plaintiff,
B. NIX, et al., Defendants.
FINDINGS AND RECOMMENDATIONS (1) FOR SERVICE OF COGNIZABLE MEDICAL INDIFFERENCE CLAIM IN SECOND AMENDED COMPLAINT AGAINST DEFENDANTS AVERY AND AKANNO, and (2) DISMISSING DEFENDANT PHILPOD (ECF No. 17)
OBJECTIONS DUE WITHIN FOURTEEN DAYS
MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on March 15, 2012 pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's second amended complaint. (ECF No. 17.)
The Court has screened the second amended complaint and for the reasons set forth below, recommends that it be served on Defendants Akanno and Avery and that Defendant Philpod be dismissed from this action.
I. SCREENING REQUIREMENT
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, malicious, " or 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).
II. PLEADING STANDARD
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 508 (1990), quoting 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor , 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins , 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty. , 811 F.2d 1243, 1245 (9th Cir. 1987).
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." Id . 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. Id. at 667-68. Plaintiff's factual allegations are construed in light most favorable to Plaintiff. Barnett v. Centoni , 31 F.3d 813, 816 (9th Cir. 1994).
III. PLAINTIFF'S ALLEGATIONS
In February 2011, Plaintiff was transferred from California State Prison - Sacramento ("CSPS") to Kern Valley State Prison ("KVSP") where he remains. His initial KVSP housing assignment (upper bunk) failed to accommodate his vision and mobility impairments and failed to honor his CSPS Comprehensive Accommodation Chrono ("CSPS Chrono") dated April 10, 2010 for a permanent lower bunk.
Plaintiff submitted a medical request for a lower bunk and was seen by Defendant Akanno, a medical doctor at KVSP. Plaintiff explained his condition and the CSPS Chrono to Akanno, including his physical difficulties and severe pain getting up and down from an upper bunk. Akanno prescribed Motrin, but refused to honor the CSPS Chrono.
Plaintiff filed a grievance. He complained to Defendant Philpod, a correctional officer at KVSP, about the failure to honor his CSPS Chrono and about his problems getting up and down from his upper bunk. He requested emergency relief. Philpod explained "there were no open lower beds but he'd do what he could." ECF 17 at 6:25-26. Philpod refused Plaintiff's request to speak ...