United States District Court, E.D. California
IRA D. PARTHEMORE, Plaintiff,
KIRAN DEEP SINGH TOOR, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM
(ECF NO. 23) OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS
MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983.
The Court screened Plaintiff's complaint (ECF No. 5) and dismissed it for failure to state a claim, but gave leave to amend (ECF No. 15). Plaintiff's first amended complaint (ECF No. 16) also was dismissed with leave to amend (ECF No. 17). Plaintiff's second amended complaint is now before the Court for screening.
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 to relief 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 677-78.
III. PLAINTIFF'S ALLEGATIONS
Plaintiff complains of acts that occurred during his incarceration at Valley State Prison ("VSP"). Plaintiff names as Defendants: 1) Kiran Deep Singh Toor, Physician at VSP, 2) Nagabhushana Siddappa Malakkla, Chief Medical Officer at VSP, and 3) Pal Singh Virk, Chief Medical Executive at VSP.
Plaintiff's allegations may be summarized essentially as follows:
Plaintiff is 74 years old and has had severe arthritis in all of his joints for over twelve years. Plaintiff previously was incarcerated at Mule Creek State Prison, and was receiving the "non-formulary" drug Celebrex for his arthritis pain. Plaintiff had been on Celebrex for over seven years. Other medications were not effective in treating his pain.
On April 22, 2013, Plaintiff was transferred to VSP and to the care of Defendant Toor. Dr. Toor stopped Plaintiff's Celebrex prescription before seeing or examining Plaintiff. When Plaintiff saw Dr. Toor on May 13, 2013, Dr. Toor lied by telling Plaintiff that his Celebrex prescription had expired on April 30, 2013. However, Plaintiff's Celebrex prescription did not expire until November 9, 2013. Dr. Toor also ...