The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS
Plaintiff Rene Bustamante ("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 21, 2008. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Pelican Bay State Prison. The incidents alleged in the complaint occurred at Kern Valley State Prison. Plaintiff alleges an Eighth Amendment claim against Correctional Officer ("CO") Davis, CO Fountain, CO J. Alcantar, CO Medina, CO J. Rocha, R. Moody, Michael, Jane Doe, Sergeant Marsh, and the State of California. For the reasons set forth below, Plaintiff's complaint is dismissed with leave to file an amended complaint within thirty days.
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).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
Plaintiff alleges that on January 18, 2008, he was placed in administrative segregation ("ASU"). While Plaintiff was being held in the holding cage prior to being placed in ASU, Defendant Fountain gave him a pair of size 12 shoes. Plaintiff told Defendant Fountain that his correct shoe size is 6 and that size 12 is too big for his feet. Defendant Fountain replied that small size shoes were not available and that size 12 would have to do for now. Plaintiff alleges that it was very difficult to walk in size 12 shoes, and that he had difficulty walking to the visiting room once a week, located a quarter of a mile away. Plaintiff requested shoes in his proper size to Defendant Medina, Rocha, and Davis, and they acknowledged his request but did not provide him with the correct shoe size.
On February 11, Defendant Alcantar issued Plaintiff a pair of size 10 shoes. On February 22, Plaintiff alleges that he fell while climbing to his upper level bunk because of his improperly fitting shoes. Plaintiff alleges that his injuries consisted of: a sprained left ankle, a quarter size abrasion on his left foot, three inch laceration on the right ankle, swelling of both ankles, partial numbness in his left ankle and foot for about 10 days, and bruises.
Defendants Marsh and Jane Doe examined Plaintiff from behind the cell door and told Plaintiff that he would receive some band-aids. Defendants Marsh and Doe did not document his injuries.
Plaintiff alleges that he suffered pain and discomfort when he walked to the visiting room on February 23 because he was denied a wheelchair. Later that day, Plaintiff was provided a pair of size 7 shoes by Defendant Michael. Defendant Michael also documented Plaintiff's injuries on a medical request form and issued him some band-aids. Plaintiff alleges that Defendant Michael should have documented his injuries on a different medical form, form 7219. Plaintiff also asked Defendant Michael for medical attention, but Defendant Michael told him that he would be seen by a registered nurse on Monday morning.
On Monday morning, Plaintiff was examined by Defendant Moody and she gave Plaintiff some ointment and band-aids which did not cover Plaintiff's wounds on his feet. Plaintiff alleges that Defendant Moody failed to ...