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 CLAIMS FOUND TO BE COGNIZABLE
Plaintiff Jose Pizarro is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff filed his complaint on October 25, 2006. On November 8, 2006, plaintiff consented to jurisdiction by a U.S. Magistrate Judge.
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, 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, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Twombly, 550 U.S. 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.
Plaintiff was injured during a softball game on November 6, 2004, while he was housed at the U.S. Penitentiary at Atwater, California. After he filed this case, plaintiff was released from prison. In this complaint, plaintiff alleges deliberate indifference to his medical needs arising from a severe fracture of his upper arm, requiring surgical reduction, and a subsequent infection. Plaintiff seeks money damages, a declaratory judgment and injunctive relief.
Plaintiff names eighteen defendants, all of whom he alleges acted with deliberate indifference to his injury, his subsequent infection, or both. Plaintiff's specific allegations are as follows:
1. Paul M. Schultz, warden of U.S.P.-Atwater, refused to intervene in plaintiff's medical treatment despite numerous complaints regarding improper medical care, improper searches and improper handcuffing of plaintiff.
2. R. Willis, Health Services Administrator, U.S.P.-Atwater, conspired with defendant
J. Franco, M.D., to withhold proper post-operative treatment, including physical therapy, from plaintiff, exacerbating plaintiff's injuries.
3. B. Urbano, Health Services Practitioner, U.S.P.-Atwater, exacerbated plaintiff's injuries by requiring plaintiff to raise his broken arm during the initial examination, despite plaintiff's protests of great pain.
4. J. Franco, M.D., Clinical Director, U.S.P.-Atwater, conspired with defendant R. Willis to withhold proper post-operative treatment, including physical therapy, from plaintiff, exacerbating plaintiff's injuries.
5. Mr. Shojael, Physician Assistant, U.S.P.-Atwater, refused to care for plaintiff on December 1, 2004, when C/O Reyes sent plaintiff to health services for fever and swelling, exacerbating plaintiff's injuries.
6. Mr. Willis, Physician Assistant, U.S.P.-Atwater, exacerbated plaintiff's injuries by improperly changing plaintiff's cast and bandages ...