Jose J. Rodriguez, Plaintiff,
Dr. Thomas Bell, et al., Defendants.
FREDERICK J. MARTONE, Senior District Judge.
On January 24, 2013, Plaintiff Jose J. Rodriguez, who is confined in the Arizona State Prison Complex-Phoenix in Phoenix, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, an Application to Proceed In Forma Pauperis, and a Motion to Appoint Counsel. In a February 15, 2013 Order, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to pay the filing fee or file a complete Application to Proceed In Forma Pauperis.
On March 18, 2013, Plaintiff filed a second Application to Proceed In Forma Pauperis. In a June 28, 2013 Order, the Court granted the second Application to Proceed, dismissed the Complaint because Plaintiff had failed to state a claim, and denied without prejudice the Motion to Appoint Counsel. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On July 22, 2013, Plaintiff filed a Motion for Additional Time to File Amended Complaint (Doc. 11). On August 22, 2013, he filed his First Amended Complaint (Doc. 13). The Court, in its discretion, will grant the Motion for Additional Time and will consider the First Amended Complaint timely filed. The Court will dismiss the First Amended Complaint with leave to amend.
I. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 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).
A pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). The Court will dismiss Plaintiff's First Amended Complaint for failure to state a claim, but because the First Amended Complaint may possibly be saved by amendment, will dismiss the First Amended Complaint with leave to amend.
II. First Amended Complaint
In his two-count First Amended Complaint, Plaintiff names as Defendants Arizona Department of Corrections Director Charles Ryan and Dr. Thomas Bell. In both counts, Plaintiff alleges violations of his Eighth Amendment rights regarding medical care and claims that as a result of Defendants actions or inactions, he has constant pain, nerve damage, problems standing for any length of time, and may possibly have permanent injuries. In his Request for Relief, Plaintiff seeks declaratory and injunctive relief, monetary damages, and his attorney's fees and costs.
In Count One, Plaintiff sues Defendant Ryan "in his official capacity." Plaintiff alleges that Defendant Ryan is responsible for establishing and enforcing policies and practices for providing constitutionally adequate medical care for inmates. Plaintiff asserts that Defendant Ryan "promises Plaintiff through written policies to provide sufficient resources to provide the community standard of health care, ' but fall[s] far below that measure." He claims that Defendant Ryan is well aware of severe system-wide deficiencies that have caused Plaintiff significant harm, yet has failed to take reasonable measures to abate the impermissible risk of harm. He also contends that Defendant Ryan has "ignored repeated warnings of the inadequacies and dangerous conditions involving the health care system." Plaintiff asserts that Defendant Ryan is deliberately indifferent because Plaintiff is still unable to receive tangible relief for his serious medical needs despite Defendant Ryan having "answered [in 2009] several concerns by medical professionals throughout the prison system that [the Arizona Department of Corrections] was not providing the standard of care guaranteed by the Arizona Constitution, the U.S. Constitution, and the department's own policies" and despite a lawsuit having been filed against him in 2012.
Plaintiff states that he has severe vertebrae damage that causes severe pain, but he has been denied any type of relief and has only been told that his pain will eventually subside and go away. Plaintiff asserts that he filed a grievance regarding the issue and Defendant Ryan acted with deliberate indifference and ignored Plaintiff's serious medical problems. Plaintiff claims that in response to the grievance, Defendant Ryan stated that the issue had been previously and recently addressed in a response to a different grievance appeal and that Plaintiff should refrain from repeatedly grieving issues that have been previously addressed. Plaintiff contends that he never received the response regarding the other grievance appeal and asserts that his problems are not being appropriately addressed. Plaintiff also asserts that he "has had no relief to the deliberate indifference to his left knee that he has had surgery on, as well. And no relief to his right shoulder. No medication for pain."
In Count Two, Plaintiff asserts that Defendant Bell is the acting physician on the unit where Plaintiff was confined when he filed his lawsuit and is responsible for "the overall health care of inmates on that unit." Plaintiff contends that Defendant Bell is aware of Plaintiff's back, knee, and shoulder problems because Plaintiff's medical records indicate that Plaintiff has had surgeries on his back and knee and because Plaintiff has been given limited duty and lower-tier/lower-bunk special needs orders due to these problems. Plaintiff states that he sought medical care for vertebrae damage in his back, tendon damage in his knee, and possible damage to his rotator cuff, but Defendant Bell repeatedly told Plaintiff that the pain will "go away and subside, eventually." Plaintiff asserts that Defendant Bell has acted with deliberate indifference because he has failed to order even the most rudimentary tests to determine what may be causing the inflammation in Plaintiff's back and knee, has ignored the fact that Plaintiff is rapidly losing his range ...