ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 4) THIRTY-DAY DEADLINE
Plaintiff Sherry Minear 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 alleges that she is the executor of the estate of her deceased husband, Raymond Minear ("Decedent"). Plaintiff filed this action in the Central District of California on May 6, 2010, alleging civil rights violations against Decedent while he was housed at Taft Federal Correctional Institution ("TFCI") resulting in his death. (Doc. 4.) An order transferring the action to the Eastern District of California was entered on May 11, 2010. (Doc. 2).
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 "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).
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.
III. Complaint Allegations
On January 3, 2007, Decedent who was incarcerated at TFCI, visited the medical unit complaining of pain in his hip and difficulty breathing.The physician evaluated him, told him he was over exerting himself and to take aspirin for the pain. (Doc. 4, ¶ 6.) During the following week, Decedent returned to the medical unit complaining of extreme pain that was keeping him up at night and causing him to burst into tears. The physician told Decedent that he would order an x-ray and for Decedent to look for his name on the "call out" sheet. No x-ray was ordered. (Id., ¶ 7.)
On or after January 12, 2007, Decedent returned to the medical unit complaining of trouble breathing, extreme pain in his hip, and being so tired he was unable to perform his job assignment or exercise. Decedent told medical staff that he believed something was significantly wrong with him due to the extreme tiredness and pain. Medical personnel allegedly documented that he was in need of testing due to the change in his daily activities and the serious, chronic pain. Decedent was advised to take aspirin and watch for his name on the "call out" sheet for an x-ray. (Id., ¶ 8.)
During the first week of February 2007, Decedent went to the medical unit and complained that he was having difficulty sleeping due to the pain in his hip and frequently being out of breath. He was unable to exercise and having difficulty performing his job assignment. Medical personnel took his vital signs, told him to take aspirin for the pain, and advised him to look for his name on the "call out" sheet for lab work. (Id., ¶ 9.) During February 2007, Decedent went to the medical unit four additional times. He was told that his lab work was normal and there was nothing wrong with him. Medical personnel excused him from work. No x-rays were taken of Decedent, despite the prior orders. (Id., ¶ 10.)
During March 2007, Decedent went to the medical unit six times. Allegedly, the unit officer requested Decedent be examined by medical personnel because he was concerned over Decedent's deteriorating health. Decedent was diagnosed with a herniated disk and the physician prescribed Benadryl, Ibuprofen and Naproxen, and instructed Decedent to drink lots of water. No lab work or x-rays were done during this time period. (Id., ¶ 11.)
During April 2007, Decedent frequently visited the medical unit complaining that he was in significant pain. His gait became unsteady, with his leg dragging behind him as he walked. Decedent was given leave from work and physical activity. An x-ray was taken. When Decedent returned for results the following week, he was informed the x-ray had been lost and would need to be redone. Decedent was advised to watch for his name on the "call out" sheet for new x-rays to be taken. (Id., ¶ 12.)
From May 2007 to October 2007, Decedent visited the medical unit at least eighteen times complaining of the same symptoms. Additionally, he complained that he had lost weight and changed eating habits, and had chronic pain. Medical personnel told him that there was nothing seriously wrong with him. Without performing an examination, medical personnel told Decedent to take Ibuprofen for the pain and he was given leave from work. (Id., ¶ 13.)
In November 2007, Decedent's condition worsened. He required a walker to ambulate. He was frequently carried to the "pill line" by other inmates. He went to sick call on November 14, 2007. On November 15, 2007, he saw the physician, who told Decedent that there was nothing seriously wrong with him without doing an examination. (Id., ¶ 14.) On November 19, 2007, Decedent began having pain down his leg and in his hands. He complained to medical personnel that the pain was excruciating and he was prescribed Tylenol. Decedent complained that the Tylenol did not touch the pain. He cried nearly every night. He was unable to walk and stopped going to the cafeteria, eating only what other inmates would cook for him. (Id., ¶ 15.)
X-rays were taken on November 23, 2007. Decedent complained to the x-ray technician that his pain was so severe at times that he was unable to think, could not sleep, was tired, and had no appetite. The technician told him that he was to see the physician. However, the ...