United States District Court, E.D. California
KEVIN P. O'CONNELL, Plaintiff,
DR. C. CHEN, Defendant.
ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 17.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE-STRIKES" PROVISION SET FORTH IN 28 U.S.C. § 1915(g)
GARY S. AUSTIN, Magistrate Judge.
Kevin P. O'Connell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on August 27, 2012. (Doc. 1.)
On August 27, 2012, Plaintiff consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) in this action, and no other parties have made an appearance. (Doc. 3.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
On May 14, 2013, the Court dismissed Plaintiff's Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On July 8, 2013, Plaintiff filed the First Amended Complaint. (Doc. 14.) On December 4, 2013, with leave of court, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (Doc. 17.)
II. 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 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 is required to 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc. , 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations 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. Id.
III. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff is a former state prisoner who was in the custody of the California Department of Corrections and Rehabilitation (CDCR) and incarcerated at Kern Valley State Prison (KVSP) when the events at issue in the Second Amended Complaint allegedly occurred. Plaintiff names Dr. C. Chen (MD) ("Defendant") as the sole defendant. Defendant was employed by the CDCR and working at KVSP at the time of the events at issue. Plaintiff's factual allegations follow.
In late June 2010, Plaintiff was assaulted by three KVSP prison guards while rising from a wheelchair, causing Plaintiff significant physical and psychological injuries which were never treated. Plaintiff was placed in administrative segregation (Ad-Seg) on charges that he had assaulted staff. The assault charges were subsequently dismissed.
While in Ad-Seg, Plaintiff requested suicide watch. At this time, Plaintiff was nine days into a twenty-one-day detoxification process from Methadone, which had been legally prescribed to Plaintiff for back pain diagnosed as disc protrusion, herniated and bulging discs, and degenerative disc disease. For nearly three years, Plaintiff was prescribed a high daily dose of Methadone. Then, Plaintiff's Methadone prescription was discontinued and he was placed on the twenty-one day detoxification program, tapering off the medication.
As part of the suicide watch intake process, Plaintiff was physically examined by Dr. C. Chen. Dr. Chen told Plaintiff he was aware of Plaintiff's detoxification program, and aware that Plaintiff had been placed in Ad-Seg for assaulting staff. Dr. Chen spoke in a manner that implied Plaintiff was guilty of the allegation. Plaintiff's eyes, legs, cheekbone, and other body parts were swollen from the assault, and his cheekbone was a purpish-red color. (A subsequent x-ray at Mule Creek State Prison showed that the cheekbone had been broken and never repaired by surgery.) Dr. Chen did not examine Plaintiff's injuries or order x-rays. He told Plaintiff that "it went with the turf" and ...