United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Donald Ray Palmer, who is confined in the Arizona State Prison Complex-Eyman (ASPC-Eyman), has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will order Defendants Lucek and Stowell to answer Counts One and Two of the Complaint and will dismiss the remaining Defendant without prejudice.
I. Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula....
II. 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.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).
Plaintiff names Corizon Incorporated, Registered Nurse Julie Lucek, and Complex Site Manager Elsie Stowell as Defendants in the Complaint. Plaintiff raises two claims for relief.
In Count One, Plaintiff claims his Eighth Amendment rights were violated when he was denied medication and appropriate treatment after knee surgery. Plaintiff states that on July 18, 2013, he had knee surgery for a meniscus tear. Plaintiff was instructed to rest and elevate his knee, ice the operated area for 30 minutes on/30 minutes off during the first two days, take medication as directed, and bear weight on his leg "as tolerated." Plaintiff claims that after returning to ASPC-Winslow, where he was confined at the time, a nurse wrote out a daily activity order that included meals in his living quarters and no school or recreation activities, and issued Plaintiff a pair of crutches. Plaintiff claims that a few hours later he was called to medical to receive medication. Plaintiff informed the officer on duty that he had just had surgery and could not make it to medical on crutches. Plaintiff alleges that Defendant Lucek eventually brought Plaintiff his medication but informed him that he would have to come to medical to pick up his next dose of medication.
Plaintiff states that he was then later called to "medical" to "sign another laid in order terminating the previous order." Plaintiff again informed detention officers that he could not make it to medical. Plaintiff claims that "medical never called Plaintiff to pick up his medication or brought him his medication ever again." Plaintiff claims that "medical" terminated the previous order and stopped his "meals and ice for his swollen knee[, ] disregarding the doctor's instructions." Plaintiff alleges that "medical" and Defendant Lucek knew of his need for medication, ice, and meals, but failed to take reasonable measures, and that Defendant Lucek was deliberately indifferent to the doctor's instructions and failed to provide needed treatment to Plaintiff.
In Count Two, Plaintiff claims that he informed Defendant Stowell, through a grievance, that he was not receiving medication, meals, or ice. Plaintiff alleges that Defendant Stowell responded by telling him that the doctor's instructions are recommendations and that "they (medical) can either follow those recommendations or write their own." Plaintiff claims that Defendant Stowell knew of Plaintiff's need for medication, meals, and ice, but failed to respond reasonably. Plaintiff alleges that as a result of Defendant Stowell's failure to order treatment, he suffered ...