The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1)
Plaintiff is an inmate proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 22, 2007.
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). "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).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Plaintiff complains of events that occurred while he was incarcerated at Wasco State Prison ("WSP") in Wasco, California. Plaintiff names three defendants: Wasco State Prison; P. Vasquez, Warden, and Nurse Woolfolk, LVN.
Plaintiff alleges that on September 4, 2007 he arrived at WSP, from Ventura County with a staph infection. Plaintiff advised Nurse Woolfolk about the infection and that he had prior physician orders for antibiotics and for his wound dressing to be changed daily. Nurse Woolfolk responded that she did not care and refused to treat Plaintiff. The next day, September 5, 2007, another nurse started to change Plaintiff's wound dressing, but Nurse Woolfolk stopped that nurse from doing so. Plaintiff advised Nurse Woolfolk that he would be filing a grievance against her, to which Nurse Woolfolk threatened Plaintiff with "retrobutions" (sic). Plaintiff filed a grievance that same day. The very next day, September 6, 2007, prison physicians prescribed two antibiotics and daily dressing changes for Plaintiff. On September 6, 2008 and September 8, 2008, Nurse Woolfolk prevented Plaintiff from seeing the optometrist for impaired vision issues and from receiving breathing treatments for his asthma. On September 13, 2007, Nurse Woolfolk confronted and verbally abused Plaintiff making it clear that he would continue having difficulty receiving medical treatment at WSP. On September 30, 2001, Plaintiff filed the final level of his inmate grievance(s) in Sacramento and, that same day, informed Warden Vasquez of "the entire situation." (Doc. 1, pp.3 & 4.)
Plaintiff seeks monetary damages and injunctive relief in the form of proper medical treatment. Plaintiff's claim for injunctive relief is moot since he is no longer incarcerated at WSP. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
Plaintiff states some cognizable claims, and may be able to amend to correct deficiencies in his pleading so as to state additional cognizable claims. Thus, he is being given the applicable standards and leave to file a first amended complaint.
1. Claims Against WSP -- a State Agency
Plaintiff names WSP as a defendant. Plaintiff may not sustain an action against a state prison. The Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state. Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991) (citation omitted); see also Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The Eleventh Amendment bars suits against state agencies as well as those where the state itself is named as a defendant. See Natural Resources Defense Council v. California Dep't of Tranp., 96 F.3d 420, 421 (9th Cir. 1996); Brook, 951 F.2d at 1053; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1989). WSP is part of the California Department of Corrections, which is a state agency. Thus, it is entitled to Eleventh Amendment immunity from suit.
2. Claims against Nurse Woolfolk
a. Deliberate Indifference to Serious Medical Needs
Plaintiff appears to allege that Nurse Woolfolk was deliberately indifferent to his ...