ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 1) THIRTY-DAY DEADLINE
Plaintiff Michael Sperry is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initially filed this action in the Northern District of California on December 22, 2009. On January 28, 2010, the case was transferred to the Eastern District of California. Plaintiff was housed at High Desert State Prison ("High Desert") at the time the events in the complaint originally occurred. He is currently housed at Pleasant Valley State Prison ("Pleasant Valley"). For the reasons set forth below, the Court finds Plaintiff's complaint fails to state a cognizable claim.
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. § 1915(a)(1). 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 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 compliant 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).
III. Plaintiff's Eighth Amendment Claim
Plaintiff brings this suit for a violation of his rights under the Eighth Amendment of the United States Constitution. Plaintiff alleges that on August 31, 2008, he fell and broke his wrist. After Plaintiff was seen by a specialist in Reno and x-rays revealed a bone fracture, his wrist was placed in a cast. Plaintiff states he is having pain in his left wrist that radiates up his arm with a loss of function in three fingers of his left hand. Plaintiff filed an informal appeal on January 14, 2009, which was partially granted. The first formal appeal, filed January 27, 2009, and second formal appeal, filed March 23, 2009, were also partially granted. On or about April 22, 2009, a third formal appeal was filed. No response to this appeal had been received at the time of filing the complaint. (Doc. 1, Comp., § I.)
Plaintiff alleges that Defendants Medina, Nepomuceno, and Yates "allow[ed] or permit[t]ed reconstructing of deformity of the distal radius with dorsal tilt and mild-moderate shortening, also nonunion of tip fracture of the ulnar styloid process and advanced degenerative osteoarthritis of the first carpometacarpal joint with mild subluxation." (Doc. 1, Comp., § III.) All Defendants are employed at High Desert, with the exception of Yates, who is employed as warden at Pleasant Valley. Plaintiff is seeking an order for reconstructive surgery, damages, and attorney fees. (Doc. 1, Comp, § IV.)
A. Liability of Individual Defendants
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. The statute clearly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978).
Additionally, government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Since a government official cannot be held liable under a theory of vicarious liability for section 1983 actions, Plaintiff must plead that the official has violated the Constitution through his own individual actions. Id. at 1948.
In this action, Plaintiff has not alleged facts demonstrating that any named defendant personally acted to violate his constitutional rights. Plaintiff states that Defendants "allow[ed] or permit[t]ed" his injury. However, Plaintiff does not link any of the named defendants with affirmative acts or failure to act, causing deprivation of his rights.*fn1 Plaintiff fails to offer more than mere ...