United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION
BARBARA A. McAULIFFE, magistrate Judge.
I. Screening Requirement and Standard
Plaintiff Ernesto Ornelas ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on February 13, 2013. On May 23, 2014, the Court dismissed Plaintiff's first amended complaint with leave to amend. (ECF No. 12.) Plaintiff's second amended complaint, filed on August 11, 2014, is currently before the Court for screening.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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 , 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, 1964-65 (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).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal , 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal , 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss , 572 F.3d at 969.
II. Plaintiff's Allegations
Plaintiff is incarcerated at the California Correctional Institution in Tehachapi, California, where the events the complaint are alleged to have occurred. Plaintiff names the following defendants: (1) Dr. H. Tate; (2) Dr. S. Shiesha; (3) Dr. A. Joaquin; and (4) L. D. Zamora, Chief Health Care Services.
Plaintiff is a 57-year-old prisoner with an extensive history of chronic lower back pain that radiates to his hip and leg area. When Plaintiff was 15 years old, he fell off a two story building and was temporarily paralyzed. Plaintiff has difficulty walking or standing for prolonged periods and was taking 60 mg of morphine twice a day for pain.
On May 20, 2009, Plaintiff transferred to Ironwood State Prison. On December 11, 2009, Plaintiff underwent magnetic resonance imaging (MRI) of his lumbar spine. The MRI report revealed mild degenerative disk disease, minimal to mild circumferential disc bulges, bilateral fact hypertrophy and mild bilateral neural foramen narrowing. Following the MRI, Plaintiff was referred to a spine specialist.
On April 16, 2010, Plaintiff was evaluated at the orthopedic surgical spine clinic and underwent a nerve conduction study. The study found mild degenerative disk disease, herniated nucleus pulposus with foraminal stenosis right greater than left, right S1 radiculopathy by nerve conduction study. Plaintiff was referred for a trial of epidural injections, along with continuing pain medication. On December 1, 2010, epidural injections were given to Plaintiff at Alvarado Hospital, but they did not help relieve the painful symptoms.
Plaintiff transferred to CCI. In April 2012, Plaintiff filled out a CDCR-7362 health care services request form to see a doctor regarding his chronic lower back pain. Defendants denied Plaintiff access to a spine specialist and pain management.
Count 1 - Defendant Tate
Plaintiff alleges that Defendant Tate violated his Eighth Amendment rights. On May 2, 2012, Plaintiff had a medical appointment with Dr. Tate regarding Plaintiff's chronic lower back pain due to degenerative disk disease, arthritis, herniated disk and annular tear. Plaintiff reported sharp pain in his hips, buttocks and back of thighs, along with numbness to his legs and feet. Plaintiff asked to be referred to a spine specialist and a pain specialist. Plaintiff also ...