United States District Court, E.D. California
ORDER DIRECTING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY THE COURT OF INTENT TO PROCEED ON EIGHTH AMENDMENT CLAIM AGAINST DEFENDANTS VIDURRI AND MARTINEZ [ECF No. 1]
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Tyrone Thompson is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the instant action on December 1, 2014. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on December 15, 2014.
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 on which relief may be granted, " or that "seek[ ] monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002).
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. Wilhelm v. Rotman , 680 F.3d 1113, 1121 (9th Cir. 2012) (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 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal , 556 U.S. at 678; Moss , 572 F.3d at 969.
On May 1, 2014, Plaintiff was taken to an outside medical facility in an ADA van. Correctional officer Vidaurri was present when Plaintiff arrived at the hospital in the ADA van and assisted Plaintiff is getting out of the van because the lift to the van broke. The doctor ordered that Plaintiff return the following day to "find out what the black spot on my lung is."
On May 2, 2014, correctional officer Vidaurri went to Plaintiff's building to take Plaintiff to the outside medical appointment. Vidaurri noticed that Plaintiff was in a wheelchair and told Plaintiff that if he could not go up and down the stairs to the van he would not take him to his medical appointment and Plaintiff would be required to sign a refusal of treatment. Although Plaintiff did not refuse treatment he was required to sign a refusal form.
Plaintiff informed Vidaurri that he it was necessary for him to go to his medical appointment because for examination of his lung, and Vidaurri stated "I know I have your paper work but if you[re] not going to go up and down the stairs to the van I'm not taking you." Plaintiff contends that Vidaurri was merely motivated by a desire to not do his job by acquiring the ADA van to take Plaintiff to his medical appointment.
In May 2014, Plaintiff developed breathing problems and was taken to the hospital for emergency breathing treatment. Dr. Alphonso informed Plaintiff that if he had not previously refused ...