ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE (Doc. 1)
Plaintiff James Reiber ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 19, 2009. 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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard 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. 554, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (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.'" Iqbal, 129 S.Ct. at 1949 (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. Iqbal, 129 S.Ct. at 1949. "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).
II. Complaint Allegations
On September 13, 2008, Plaintiff, who is incarcerated at the California Substance Abuse Treatment Facility ("CSATF"), was reading a book on his assigned upper bunk at approximately 23:00 hours. He rolled over and fell four and one half feet off the bunk onto the cement floor, landing on his left hip. (Doc. 1, Comp., § IV, p. 4.) An emergency medical alarm was sounded and correctional staff responded. Staff asked Plaintiff to stand up and walk to a stretcher, but he was unable to stand on his own. Plaintiff was lifted onto the stretcher and transported to the Correctional Treatment Center ("CTC") by prison ambulance. (Doc. 1, Comp., p. 4.)
According to Plaintiff, once he was at CTC he became very cold and started to shiver uncontrollably. Defendants Croom, Duran, and Tran were all nearby joking about the incident and thwarted any effort by Plaintiff to get a blanket from medical staff. After being left alone at CTC for several hours, Plaintiff was transported to Corcoran Hospital in the back seat of a patrol car. During the transport Plaintiff had to sit up and he was in leg and hand restraints. Plaintiff alleges that he was in extreme pain during the trip. During the ride, the transporting officers continued to joke and ridicule Plaintiff. Plaintiff alleges these acts were cruel and unusual punishment and a direct violation of Title 15, CCR, §§ 3004, 3005. (Id.)
At Corcoran Hospital Plaintiff was provided with a blanket, almost seven hours after his initial injury, and had his hip x-rayed. During the medical exam, Plaintiff alleges that the doctor berated Defendants Croom and Duran for not allowing Plaintiff to have a blanket, stating that he could have gone into shock. Additionally, when the doctor found out Plaintiff was not transported by ambulance he was very upset, stating they could have caused further damage. (Id.) Plaintiff was transported by ambulance to Fresno Community Regional Hospital for surgery and had three titanium screws inserted into his hip to repair a fracture of his left femur where it joins the pelvis. (Id. at § IV, p. 4.) The surgeon told Plaintiff that he should not put any weight on his leg for 4-6 weeks and that he should be issued a wheel chair at the prison until he was sufficiently healed. (Id., p. 4.)
On September 16, 2008, Plaintiff was transported back to CSATF in the back of the custody transport van. He was required to climb three steps to get into and out of the van. He had to ride sideways, causing him to move from side to side as the van accelerated or stopped, which caused additional pain. When Plaintiff arrived at CTC, medical staff came to the van and took his vital signs, but refused to allow him to see a doctor to answer questions about his medical care at the prison. Plaintiff was given crutches and had to walk back to building G3. After he requested a lower bunk, he was reassigned and other inmates moved his belongings. (Id.)
Plaintiff attempted to see Defendant Nyenke on August 17, 2008. After waiting several hours, he was told he needed to submit a form to see the doctor unless it was a life threatening emergency. Plaintiff alleges he was refused pain medication several times and was not given any paperwork from the hospital. (Id., p. 5.)
In his complaint Plaintiff alleges claims against Defendants as follows. Defendants Duran, Tran, and Croom denied him immediate medical treatment, harassed him and threatened him with further harm while he was seeking medical treatment. Defendant Rodriguez harassed Plaintiff and made fun of him in public. An unknown nurse treated him between 11:30 p.m. and 3:00 a.m. on the night of the injury and was not responsive to his medical needs. Defendant Nyenke delayed pain medication and a wheelchair. Plaintiff brings this suit seeking an injunction requiring the California Department of Corrections and Rehabilitation ("CDCR") to install guard rails on upper bunks in all prisons, dismissal or retraining of individual defendants, financial compensation in excess of $100,000 and medical care for the remainder of his life for the hip injury. (Id.)
A. Deliberate Indifference to Medical Needs
[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, 104 (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 ...