United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND (ECF NO. 14) AMENDED COMPLAINT DUE WITHIN THIRTY
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
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.)
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
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. §
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).
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).
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.
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.
allegations may be summarized essentially as follows.
October 2014, Plaintiff injured his right rotator cuff while
was denied treatment and, on January 21, 2015, he submitted a
CDCR 602 medical appeal requesting an MRI of his shoulder and
pain medication. On January 22, 2015, Plaintiff underwent
an MRI and eventually was diagnosed with a torn rotator cuff.
Johal or Klang granted Plaintiff’s first level
appeal in part on February 23, 2015. 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.
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.
submitted his appeal to the third level. Plaintiff continued
to experience severe pain that was unresolved with
26, 2015, Defendant Paik recommended surgery. Paik previously