United States District Court, E.D. California
LYNN D. ROSS, Plaintiff,
B. WOODWARD, et al., Defendants.
ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Doc. 12.) ORDER FOR THIS DISMISSAL TO COUNT AS A STRIKE PURSUANT TO 28 U.S.C. §1915(g) ORDER FOR CLERK TO CLOSE CASE
GARY S. AUSTIN, Magistrate Judge.
Lynn Dell Ross ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 23, 2013. (Doc. 1.) On October 30, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 4.) 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).
The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on March 17, 2014, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 11.) On April 7, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 12.)
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. Id. 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 FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at Valley State Prison for Men in Chowchilla, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR), where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Barbara Woodward (Nurse Practitioner) and N. Malakkla (Chief Physician and Surgeon) ("Defendants"). Defendants were employed by the CDCR at the time of the events at issue. Plaintiff's factual allegations follow.
On or about July 3, 2013, Plaintiff reported to the Facility D Clinic complaining of excruciating pain because of his ventral hernia. Plaintiff was in so much pain that he lay balled up in a fetal position due to the pain, in front of the clinic. Defendant Nurse Practitioner Woodward would not take any action. Defendant Dr. Malakka was notified of the emergency and summoned by the prison alert system. Plaintiff lay in front of the clinic for over an hour, suffering pain and humiliation as defendant Woodward and other medical staff told Plaintiff, "There is nothing we can do for you, as we do not believe anything is wrong with you!" (First Amended Complaint (FAC), Doc. 12 at 5:26-28.)
On August 13, 2013, Plaintiff was interviewed by defendant Woodward regarding an administrative appeal Plaintiff had filed regarding a request for transfer and Plaintiff's need for a change in medication to relieve his pain because the prescribed medication known as a "G.I. Cocktail" (Gastrinal Intestine Cocktail) was not working. Defendant Woodward was aware of Plaintiff's ongoing painful episodes due to the ventral hernia. She told Plaintiff she was not going to change the medication and he just has to deal with the pain. Plaintiff told defendant Woodward that his excruciating pain prevents him from sleeping, walking, and concentrating, and he needs a different pain medication. Woodward told Plaintiff that she was not concerned, because Plaintiff always complains about pain. She knew the "G.I. Cocktail" was not adequately relieving Plaintiff's pain, but refused to do anything.
On or about August 27, 2013, defendant Dr. Malakka signed off on the appeal, agreeing with defendant Woodward's determination, refusing to address Plaintiff's pain. Defendants knew or should have known that Plaintiff faced a substantial risk of future serious harm, and they disregarded that risk.
Plaintiff suffers pain, humiliation, degradation, emotional stress, duress, mental anguish, and embarrassment. ...