The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIM FOUND TO BE COGNIZABLE (Doc. 11)
Plaintiff Carlos Jimenez is a state prisoner, proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and California negligence law. Plaintiff filed his first amended complaint on December 11. 2008.*fn1
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. § 915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). 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, supra, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (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 that is plausible on its face.'" Iqbal, supra, 129 S.Ct. at 1949, quoting Twombly, supra, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Ibid.
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, plaintiff must set forth the legal and factual basis for his claim.
In screening a complaint, a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'"), quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke 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, presently an inmate at California State Prison, Corcoran ("CSPC"), fell while attempting to descend from his upper bunk at Kern Valley State Prison ("KVSP"), striking the back of his head and his neck on a desk. Plaintiff immediately experienced severe pain and weakness in his neck and was taken to the KVSP medical unit where he was initially examined by Nurse Campos at approximately 0300 hours. Defendant, Dr. Martha Spaeth, examined plaintiff at 0835 hours, observing swelling of the back of plaintiff's neck. Plaintiff advised her that he was in severe pain, experiencing tingling in his finger tips, weakness in his neck, and jolts of intense pain whenever he moved his neck. Defendant refused to take x-rays, informing plaintiff that if his neck were broken, he would be in much more severe pain. Pronouncing plaintiff's neck "fine" and opining that the pain would subside on its own, defendant directed correctional officers to return plaintiff to his cell. Defendant prescribed no pain medication.
For two days, plaintiff endured severe pain whenever he attempted such typical daily activities such as using the restroom or attempting to sleep or eat. After numerous requests for medical care and pain medication, plaintiff saw Dr. Lopez, who immediately transferred plaintiff to Kern Medical Center in Bakersfield where Dr. Wrobel diagnosed a cervical spine fracture requiring emergency surgery to remove a damaged disc and stabilize plaintiff's spine.
B. Eighth Amendment Claim -- Deliberate Indifference to Serious Medical Needs (Infliction of Pain)
Plaintiff contends that by failing to prescribe pain killers and allowing him to suffer great pain, defendant demonstrated deliberate indifference to plaintiff's serious medical needs constituting cruel and unusual punishment in ...