Smith v. Johal

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF NO. 14) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

          MICHAEL J. SENG UNITED STATES 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. (ECF Nos. 1 & 5.)

         The Court dismissed Plaintiff’s complaint for failure to state a claim, but gave leave to amend. (ECF No. 9.) Plaintiff’s first amended complaint is 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). “N otwithstanding 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 is incarcerated at Wasco State Prison where the acts giving rise to his complaint occurred. He names the following defendants in their individual capacities: (1) A. Johal, M.D., (2) Chief Physician A. Kla ng, (3) Chief Medical Executive A. Youssef, M.D., (4) Orthopedic Surgeon Paik, (5) Dr. Zepp, (6) Nurse Practitioner Brook Sheela, (7) V. Joseph, and (8) John Does 1-10.

         Plaintiff’s allegations may be summarized essentially as follows.

         In October 2014, Plaintiff injured his right rotator cuff while working out.

         Plaintiff was denied treatment and, on January 21, 2015, he submitted a CDCR 602 medical appeal requesting an MRI of his shoulder and pain medication.^[1] On January 22, 2015, Plaintiff underwent an MRI and eventually was diagnosed with a torn rotator cuff.

         Defendant Johal or Klang^[2] granted Plaintiff’s first level appeal in part on February 23, 2015.^[3] Plaintiff was not put on the list for surgery. Defendant Johal delayed surgery and scheduled Plaintiff for an orthopedic consultation. Johal also denied Plaintiff morphine and instead prescribed Tylenol #3 for pain.

         Plaintiff submitted his appeal to the second level. On April 13, 2015, Defendant Youssef issued his decision on Plaintiff’s second level appeal and also denied surgery, instead recommending that Plaintiff undergo physical therapy. Plaintiff states that this decision was motivated by a desire to avoid the costs of surgery.

         Plaintiff submitted his appeal to the third level. Plaintiff continued to experience severe pain that was unresolved with medication.

         On May 26, 2015, Defendant Paik recommended surgery. Paik previously ...