The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDING AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (Doc. 24) THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendations Following Screening of Third Amended Complaint
Plaintiff Darryl Eugene Taylor, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 23, 2007. Plaintiff filed a first amended complaint as a matter of right on July 10, 2008, Fed. R. Civ. P. 15(a), and on May 21, 2009, the Court found that Plaintiff's amended complaint stated cognizable claims against some but not all of the defendants, 28 U.S.C. § 1915A. The Court dismissed the amended complaint, with leave to amend. On June 19, 2009, Plaintiff filed a second amended complaint, which was dismissed with leave to amend on July 13, 2010.*fn1 Pending before the Court is Plaintiff's third amended complaint, filed July 26, 2010.
II. Screening Requirement
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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.
III. Plaintiff's Eighth Amendment Claim
A. Summary of Third Amended Complaint
Plaintiff, who is currently incarcerated at Kern Valley State Prison, brings this action against Warden James Yates, Chief Medical Officer Alvarnez, and dentist Dr. A. Verdugo for violating his rights under the Eighth Amendment of the United States Constitution while he was housed at Pleasant Valley State Prison (PVSP). Plaintiff, who suffers from pyorrhea, alleges that while he was housed at the California Correctional Institution (CCI), a dental treatment plan was prescribed for him but after he transferred to PVSP, Defendants Yates and Alvarnez failed to follow the course of treatment prescribed at CCI.*fn2 Plaintiff filed an inmate appeal requesting that the treatment plan be followed but the appeals coordinator refused to resolve the appeal on its merits.
To state a claim under section 1983, Plaintiff must show that each named defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There is norespondeat superior liability, and each defendant is only liable for his own misconduct. Iqbal at 1948-49. A supervisor may be held liable for the constitutional violations of his subordinates only if he "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); also Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).
"[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 receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).
The failure of prison officials at PVSP to continue with the treatment plan initiated at CCI, without more, does not state a claim for violation of the Eighth Amendment. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Further, Plaintiff's third amended complaint is devoid of any specific facts supporting a claim that Defendants Yates, Alvarnez, and Verdugo "[knew] of and disregard[ed] an excessive risk to [Plaintiff's] health...." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994). Plaintiff has not stated a ...