Sharpe v. Sherman

         SCREENING ORDER ORDER FOR PLAINTIFF TO: (1) NOTIFY THE COURT THAT HE IS WILLING TO PROCEED ONLY ON THE CLAIMS FOUND COGNIZABLE BY THE COURT FOR DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS IN VIOLATION OF THE EIGHTH AMENDMENT AGAINST C. CRYER, J. LEWIS, AND S. GATES, AS WELL AS FAILURE TO PROTECT IN VIOLATION OF THE EIGHTH AMENDMENT AGAINST S. SMITH; (2) FILE A FIRST AMENDED COMPLAINT; OR (3) NOTIFY THE COURT THAT HE WISHES TO STAND ON HIS COMPLAINT, SUBJECT TO THIS COURT ISSUING FINDINGS AND RECOMMENDATIONS TO THE DISTRICT JUDGE ASSIGNED TO THIS CASE (ECF NO. 1) THIRTY (30) DAY DEADLINE

         Adam Sharpe (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on May 21, 2019. (ECF No. 1).

         The Court has screened the Complaint and finds that Plaintiff states a cognizable claim for deliberate indifferent to serious medical needs in violation of the Eighth Amendment against C. Cryer, J. Lewis, and S. Gates, as well as a claim for failure to protect in violation of the Eighth Amendment against S. Smith. The Court will provide Plaintiff with leave to file a First Amended Complaint, if he believes that additional facts will establish other claims with the assistance of the legal standards set forth below. Plaintiff may also choose to proceed only on the claims found cognizable in this order, or to stand on this Complaint, subject to the undersigned issuing findings and recommendations to the assigned district judge consistent with this order.

         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 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). As Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may also screen the complaint under 28 U.S.C. § 1915. “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 (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. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. 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). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         II. SUMMARY OF PLAINTIFF'S COMPLAINT

         Plaintiff's complaint alleges as follows:

Plaintiff suffers from Keratoconus, an eye disease that deteriorates vision. For this, Plaintiff has been prescribed SynergEyes Hybrid Contact Lenses. Without the contact lenses, Plaintiff's natural vision is 20/200 in the left eye and 20/400 in the right eye. The lenses are to be replaced every 6 months. Plaintiff received lenses on October 4, 2016 at Kern Valley State Prison. Plaintiff was then transferred to Substance Abuse Treatment Facility (“SATF”) in December of 2016. Plaintiff let SATF medical know that Plaintiff's lenses would need to be replaced.

         On April 27, 2017, Plaintiff was told he would be referred to see an ophthalmologist. Plaintiff did not see this ophthalmologist. Plaintiff filed a healthcare appeal, which was partially granted. Yet, by September of 2017, Plaintiff still had not received the replacement lenses.

         Plaintiff then submitted a CDCR 1824 reasonable accommodation request for single cell status, stating that he felt vulnerable to a cell mate because his vision, without contact lenses, was severely impaired. This request was denied.

         Plaintiff finally saw an ophthalmologist on June 4, 2018, which recommended contact lens replacement. However, by August 1, 2018, Plaintiff had yet to receive replacements. Plaintiff submitted another appeal, which was answered. But Plaintiff still did not receive any contact lenses.

         On January 24, 2019, Plaintiff still had not received his contact lenses. He was then assaulted by a cell mate. He received multiple injuries and was escorted off the prison grounds in an emergency response vehicle.

         On April 1, 2019, having still not received contact lenses, Plaintiff submitted another reasonable accommodation request ...