United States District Court, E.D. California
ORDER DIRECTING PLAINTIFF TO FILE EITHER A SECOND
AMENDED COMPLAINT OR A NOTICE OF WILLINGNESS TO PROCEED ON
HIS EIGHTH AMENDMENT CLAIM AGAINST DR. SHITTU ONLY (ECF NO.
12) THIRTY (30) DAY DEADLINE
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
David Ibarra, a former state prisoner proceeding pro se and
in forma pauperis, filed this civil rights action
pursuant to 42 U.S.C. § 1983 on February 2, 2017.
Plaintiff has consented to Magistrate Judge jurisdiction in
this case. (ECF No. 6). No other parties have appeared.
in forma pauperis statute provides,
“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. §
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)),
and 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). While factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). 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, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
complains of acts that occurred at Kern Valley State Prison
(“KVSP”) in Delano, California, and the
California Correctional Institution (“CCI”) in
Tehachapi, California. Plaintiff brings this action against
four Defendants: T. Brewer, Chief Executive Officer at KVSP;
Shittu, a doctor at KVSP; D. Longcrier, Chief Support
Executive at CCI; and Tate, doctor at CCI. Plaintiff alleges
that Defendants denied him adequate medical care.
allegations may be summarized as follows:
early as January 2010, Plaintiff has continually complained
of right shoulder pain. Defendant Dr. Shittu, of KVSP, merely
provided Plaintiff with mild pain relievers and made no
attempt to diagnose or treat Plaintiff's symptoms. On
July 2, 2010, Plaintiff saw Dr. Shittu complaining of
excruciating and debilitating pain and numbness on the left
side of his body unrelieved by the prescribed medication. Dr.
Shittu told Plaintiff to stop “faking and trying to get
narcotics.” Dr. Shittu refused to examine Plaintiff or
prescribe Plaintiff effective pain medication.
5, 2010, Plaintiff filed a grievance complaining about Dr.
Shittu's conduct. On February 15, 2011, Defendant Brewer
denied Plaintiff's grievance.
was eventually moved to a different “section” of
the prison. On October 2, 2013, Plaintiff saw Defendant Dr.
Tate. When Plaintiff described his medical issues, Dr. Tate
became very agitated and refused to treat Plaintiff, stating
“prisoners aren't worthy of civilian
treatment.” On October 25, 2010, after several
unsuccessful visits with Dr. Tate, Plaintiff filed an inmate
grievance regarding Dr. Tate's conduct. Defendant
Longcrier denied the grievance on December 31, 2013.
was eventually moved to Pelican Bay State Prison, and on
February 11, 2015, an MRI revealed that Plaintiff had a torn
rotator cuff with muscle retraction and severe muscle