The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO FILE AN AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 1)
Plaintiff Felix Estrella ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 26, 2008.
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)).
II. Summary Plaintiff's Complaint
A. Plaintiff's Allegations
Plaintiff is currently housed at Kern Valley State Prison in Delano. Plaintiff alleges that his rights under the Eighth Amendment of the United States Constitution are being violated with respect to the failure to provide adequate medical care his back injury.
Plaintiff alleges his suffered injuries to his back at Folsom State Prison in 2001 and at California State Prison-Lancaster in 2003. In 2005, Plaintiff began suffering pain so severe pain that it caused his right leg to drag. Plaintiff received an MRI on April 21, 2006, and while at Mercy Hospital in Bakersfield on July 11, 2006, for a consultation on the MRI results, Plaintiff was admitted an emergency laminectomy for severe lumbar spinal stenosis.
Plaintiff alleges that following his return to Kern Valley State Prison, medical staff refused to provide follow-up care. Plaintiff alleges that he had to walk over a mile to get a pain pill, and staff refused or ignored his requests to have his bandage cleaned and changed. Plaintiff alleges his bandage was changed once in fourteen days, and that as a result of staff negligence, including the failure to house him in a hospital setting where his wound would have been checked by a doctor, his incision became infected. On August 26, 2006, Plaintiff was taken to Mercy Hospital for a follow-up and was admitted to have his infected incision treated.
Plaintiff alleges that he had been prescribed medication by Dr. Spaeth through September 29, 2007, but it was discontinued for no apparent reason by Dr. Qumar, leaving him in severe and constant pain. Plaintiff also alleges that Correctional Officer Cruz misled a nurse at the medical department by telling her that Plaintiff was refusing medical treatment. As a result, Plaintiff was denied medical attention. Finally, Plaintiff alleges that he complained to Dr. Lopez via an inmate appeal about Dr. Qumar's discontinuation of his medication, but Dr. Lopez told him to submit a medical form, causing a delay in the obtainment of medical attention.
B. Plaintiff's Eighth Amendment Medical Care Claim
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay in ...