United States District Court, E.D. California
Mester Plaintiff Pro Se
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in an action brought under 42 U.S.C. § 1983. On August
30, 2017, the court dismissed plaintiff's complaint with
leave to amend. ECF No. 6 at 7. On September 6, 2017,
plaintiff filed a “supplement to complaint”
(“supplement”). ECF No. 9. The supplement, four
pages in length, did not amend the complaint. Instead, it
referred back to the complaint and simply reiterated its
general allegations related to defendants' treatment of
plaintiff's degenerative hip condition and related pain.
See generally id. For the reasons stated below,
plaintiff will be given a second opportunity to file a first
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 “frivolous,
malicious, or 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).
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss . . . claims which are
‘based on indisputably meritless legal theories' or
whose ‘factual contentions are clearly
baseless.'” Jackson v. Arizona, 885 F.2d
639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S.
at 327), superseded by statute on other grounds as stated in
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
basis. Franklin, 745 F.2d at 1227-28 (citations
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
Cty., 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.
Section 1983, a plaintiff bringing an individual capacity
claim must demonstrate that each defendant personally
participated in the deprivation of his rights. See Jones
v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Plaintiff must plead sufficient facts showing that the
official has violated the Constitution through his own
individual actions by linking each named defendant with some
affirmative act or omission that demonstrates a violation of
plaintiff's federal rights. Iqbal, 556 U.S. at
676; see Monell v. Dep't of Soc. Servs., of the City
of New York, 436 U.S. 658, 691, 695 (1978) (mandating
actual connection or link between actions of defendants and
deprivation alleged to have been suffered by plaintiff).
Official Capacity Suits
against a state officer in his official capacity is a suit
against the state. Diamond v. Charles, 476 U.S. 54,
57 n.2 (1986) (citing Kentucky v. Graham, 473 U.S.
159, 165-66 (1985)). The Eleventh Amendment bars federal
suits for violations of federal law against state officials
sued in their official capacities for damages and other
retroactive relief. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989); Quern v.
Jordan, 440 U.S. 332, 337 (1979); Pena v.
Gardener, 976 F.2d 469, 472 (9th Cir. 1992); see
also Hafer v. Melo, 502 U.S. 21, 27 (1991) (stating
state officers sued for damages in their official capacities
are not “persons” for purposes of suit because
they assume identity of government that employs them).
is an inmate housed at the California Health Care Facility
(“CHCF”) in Stockton, California. In his initial
complaint, he names Dr. N. Malakkla, Chief Medical Officer;
Dr. John Krpan, D.O., a primary care physician; Dr. A. Adams,
Chief Executive Officer; Dr. Paik,  M.D. and former primary care
physician; Dr. Lwin, M.D., and Dr. Huu Nguyen as defendants.
See ECF No. 1 at 1-2. Later in the complaint,
plaintiff also identifies Dr. James Williamson and Dr. Howard
Church as defendants. See id. at 11. He would like
to sue some of them in both their individual and official
capacities and others solely in their individual capacities.
See id. at 2, 11.
plaintiff's complaint is convoluted, a second review of
it leads the court to find that plaintiff is alleging that
his rights under the Eighth Amendment have been violated.
Specifically, plaintiff alleges that all the named defendants
have demonstrated deliberate indifference to his serious
medical need, by (1) unjustifiably delaying and/or failing to
approve hip surgery recommended as early as 2011 by three
different orthopedic specialists, and/or (2) failing to
provide plaintiff with adequate pain management options while
awaiting the surgery. See generally ECF No. 1 at 1,
seeks a declaratory judgment and compensatory damages from
each defendant in the amount of $250, 000.00, as well as
punitive damages from each defendant. See ECF No. 1
at 4, 11. Plaintiff also requests a jury trial on all issues
triable by jury as well as any other relief the court deems
just, proper and equitable. See id.
Facts Alleged in Support of Claims
contends that he has been diagnosed with advanced
bone-on-bone bilateral degenerative hip disease and that
three consultations with orthopedic specialists, the first of
which was in March 2011,  have yielded recommendations that he
have, at minimum, a total replacement of his right hip.
See ECF No. 1 at 4. Since that time, plaintiff
states that he has been in acute, chronic pain due to his hip
disease, severe back pain, and polyneuropathy, and other
ailments. See id. Plaintiff further asserts that
despite his pain and numerous trips to the emergency room, he
has been treated with less effective medication like Tylenol
with codeine, Motrin, Toradol, or with nothing at all.
See ECF No. 1 at 5. No narcotics have been given to
him despite the severity of his pain. See id.
October 2014 - September 2015
alleges that in October 2014, prison doctors minimized his
“acute chronic change” in back pain. See
ECF No. 1 at 9-10. Although he was rushed to the hospital at
that time due to his pain, Dr. James Williamson and Dr.
Howard Church directed that plaintiff was not to receive
narcotics. See id. at 10, 27. Plaintiff believes
this was done to punish him and single him out for
mistreatment. See id. at 10.
also alleges that he has had allergic reactions to some of
the prescribed, less effective medication. See id.
He states that in September 2015, Dr. Paik and the pain
management committee insisted that he take Tylenol with
codeine to manage his pain. See ECF No. 1 at 5.
Plaintiff told them that he was allergic to that medication,
but they insisted that he take it before they prescribed him
anything else. See id. After a week of taking it,
plaintiff had a severe reaction and was rushed to the
hospital. See id. at 5-6. To this day, plaintiff
asserts, the doctors at CHCF refuse to acknowledge that
plaintiff is allergic to Tylenol with codeine. See
Id. at 6.
May 2016 ...