ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 1) THIRTY-DAY DEADLINE
Plaintiff Victor Sanchez-Calle is a former 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. This action was filed on November 11, 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.*fn1 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
The events alleged in the complaint occurred while Plaintiff was incarcerated at California City Correctional Institution. At the time he was sentenced the pre-sentence report indicated that he had knee surgery in 1995, was having knee pain, and needed medical attention. (Doc. 1, Comp., ¶ 4.2.) Prior to his sentencing Plaintiff saw a specialist who indicated that he had damage to the bone in his knee that needed to be repaired. (Id., ¶ 4.3.)
Plaintiff alleges that while incarcerated he consistently had knee pain and requested treatment. The prison issued him shoes that were several sizes too big, requiring him to place his shower shoes inside of them so he could walk. On or about August 25, 2009, medical staff informed him that he would be sent to an outside physician to have his knee evaluated and that he would be provided properly fitted shoes. He did not receive treatment for his knee or properly fitted shoes. (Id.)
On August 7, 2009, Plaintiff slipped on water on the gym floor. An x-ray revealed that his fingers were broken and his hand was placed in a cast. Plaintiff alleges he was told that he would be sent for outside treatment for his hand injury. On September 22, 2009, Plaintiff received notice from the medical department that the results of the hand x-ray did not indicate a need for further treatment of the injury. Plaintiff continued to request further treatment, but was denied because they were too busy to see him. (Id.) Plaintiff brings this action against Defendant Wagner, requesting immediate treatment of his knee and hand injury and any other relief to which he is entitled. (Id., § VI.)
Plaintiff has brought this action naming Defendant Wagner, the warden of the correctional institution. 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. A supervisor may only be held liable for the actions of his subordinates 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).
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. In other words, to state a claim for relief, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.
Plaintiff has failed to allege any affirmative act or omission taken by Defendant that demonstrates a violation of Plaintiff's federal rights, therefore he has failed to state a cognizable claim. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. ...