United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND
DENNIS L. BECK, Magistrate Judge.
Plaintiff Larry Brady Eberhardt ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on May 3, 2013. Pursuant to Court order, Plaintiff filed a First Amended Complaint ("FAC") on January 30, 2014. He names Dr. Aw as the sole Defendant.
A. LEGAL STANDARD
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.
To state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal , 129 S.Ct. at 1949-50; 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 , 129 S.Ct. at 1949-50; Moss , 572 F.3d at 969.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at the California Correctional Center in Susanville, California. The events complained of occurred while he was housed at the Fresno County Jail.
Plaintiff alleges that Defendant Aw prescribed him psych medication when he complained about chronic back pain, a problem that Plaintiff has had since 1994. Plaintiff explained to Defendant Aw that he had been taking certain medications for his back pain, but Defendant Aw put him on psych medication. Plaintiff contends that this caused a temporary loss of memory, shaking of his right hand and terrible headaches. Now that Plaintiff is in prison, his back pain is worse and he is unable to hold a prison job.
1. Eighth Amendment Legal Standard
For claims arising out of medical care in prison, Plaintiff "must show (1) a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain, " and (2) that "the defendant's response to the need was deliberately indifferent." Wilhelm v. Rotman , 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner , 439 F.3d 1091, 1096 (9th Cir. 2006)).
Deliberate indifference is shown by "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm caused by the indifference." Wilhelm , 680 F.3d at 1122 (citing Jett , 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow v. McDaniel , 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); Wilhelm , 680 F.3d at 1122. Deliberate indifference may be shown "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown ...