The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION (Doc. 15) RESPONSE DUE WITHIN 30 DAYS
Plaintiff LeGrante V. Ellis ("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 is in the custody of the California Department of Corrections and Rehabilitation and was incarcerated at North Kern State Prison ("NKSP") and subsequently transferred to Kern Valley State Prison ("KVSP") during the events in his complaint. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth Amendment. Plaintiff names medical doctors Dr. M. Spaeth and Dr. J. Akanno as defendants. For the reasons set forth below, the Court finds that Plaintiff's complaint does not state any cognizable claims and recommends that this action be dismissed with prejudice for failure to state a claim.
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff filed the Original Complaint in this action on September 17, 2007. (Doc. #1.) On January 12, 2009, Plaintiff's Original Complaint was screened pursuant to 28 U.S.C. § 1915A. (Doc. #10.) The Court found that Plaintiff's Original Complaint failed to state any claims and dismissed the complaint with leave to file an amended complaint. Plaintiff filed his First Amended Complaint on March 13, 2009. (Doc. #15.) This action proceeds on Plaintiff's First Amended Complaint.
Plaintiff claims that Defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution by withholding medical treatment for his left knee injury. Plaintiff injured his left knee on August 5, 2005 while coming down some stairs at NKSP. Doctor Iway at NKSP examined Plaintiff and determined that Plaintiff had a possible torn meniscus tendon in his left knee. Iway filled out a form requesting that Plaintiff receive an orthopedic referral. However, Plaintiff was transferred to KVSP before the referral took place.
On October 6, 2005, Plaintiff received an initial health screening at KVSP. Plaintiff informed the screening nurse about the left knee injury and Iway's recommendations. The nurse told Plaintiff that he would be examined within 72 hours by a medical doctor. Plaintiff was examined October 19, 2005 by Dr. William McGuiness. Plaintiff told McGuiness that the pain in his knee was getting worse and was having difficulty getting around and performing everyday activities. Plaintiff also informed McGuiness about Iway's recommendations for an orthopedic consultation. After McGuiness completed the examination, he filled out the necessary forms requesting an orthopedic referral for Plaintiff. Plaintiff was also prescribed pain medication.
After 30 days passed without Plaintiff receiving an orthopedic consultation, Plaintiff began submitting health care requests because his condition was getting worse. On December 9, 2005, Plaintiff was examined by Defendant Spaeth.Plaintiff informed Spaeth of the details of his injury, including the increased pain in his knee and the prior recommendations from Iway and McGuiness to receive an orthopedic consultation.Plaintiff also told Spaeth that he had previously been given a knee brace that helped alleviate the pain, but the brace had been lost during Plaintiff's transfer from NKSP to KVSP. Spaeth noted Plaintiff's comments and told Plaintiff that she would prescribe pain medication, order a knee brace, and order an MRI. Some time between January 10, 2006 and February 27, 2006, Spaeth cancelled the order for Plaintiff's knee brace because the MRI came back and indicated that Plaintiff's left knee was "within 'normal' limits." (Compl. 7:1-7.)
On February 28, 2006, Plaintiff informed Defendant Akanno that he was having a difficult time getting around and was experiencing chronic knee pain. Plaintiff requested an orthopedic consult as recommended by Iway and McGuiness, as well as a knee brace. In his report, Akanno wrote that Plaintiff refused to believe that his MRI indicated that his left knee was "within the realm of normalcy." (Compl. 8:25-28.) Plaintiff complains that Akanno did not examine Plaintiff during the appointment and therefore inappropriately denied ...