FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS (Doc. 21) THIRTY-DAY DEADLINE
Plaintiff James Eric Mallett ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on May 16, 2007. (Doc. 1.) An order dismissing the complaint with leave to amend was issued on April 17, 2008. (Doc. 10.) After Plaintiff failed to file an amended complaint in compliance with the prior order, findings and recommendations recommending dismissing the action were issued on May 20, 2008. (Doc. 11.) Plaintiff filed a motion for an extension of time on May 30, 2008, which was granted on June 5, 2008. (Docs. 12, 13.) A first amended complaint was filed on June 30, 2008. (Doc. 14.) On July 7, 2008, an order vacating the findings and recommendations to dismiss the case was issued. (Doc. 15.) On February 23, 2010, an order dismissing the first amended complaint for failure to state a claim with leave to amend was issued. (Doc. 20.) A second amended complaint, filed on March 26, 2010, is currently before the Court. (Doc. 21.)
For the reasons set forth below, the Court finds that a cognizable claim has been stated against Defendant Guinness, but finds no other cognizable claims.
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)). 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.
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.
III. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Salinas Valley State Prison in Soledad, California. The incidents alleged in the complaint occurred while he was housed at California State Prison in Corcoran, California. On February 23, 2006, Plaintiff injured his knee while he was exercising and experienced pain, swelling, and popping. Plaintiff was told to put in a sick call slip. On February 27, 2006, Plaintiff was seen by Defendant Johnson who gave him Tylenol and told Plaintiff he would be seen by the doctor on March 20, 2006. However, Plaintiff did not see a doctor until two months later. Plaintiff did not receive an x-ray of his knee until May 10, 2006. (Doc. 21, § IV.)
Defendant Bondoc, Plaintiff's primary treating physician, did not sign paperwork until ordered to by Sacramento,*fn1 delaying Plaintiff's treatment by six months. (Id. at 4:3-11.) Defendant Bondoc prescribed a knee brace for Plaintiff.*fn2 (Id. at 4:18-19.) Defendant McGuinness, Chief Medical Officer, denied the knee brace claiming there was no supporting data, even though the medical records showed Plaintiff was in need of a hinged knee brace. (Id. at 4:16-22.) The denial of the brace caused Plaintiff to suffer sever pain and further damage to his knee. (Id. at 4:16-18.)
At the time these incidents occurred, Plaintiff was housed in the Security Housing Unit ("SHU"). Plaintiff was denied a knee brace because Defendant claimed a safety and security issue, but other inmates were given metal braces, canes, walkers, etc. (Id. at 5:7-12.)
Plaintiff alleges that Defendants Johnson, Bondoc, and McGuinness violated his Eighth Amendment rights due to deliberate indifference to his medical needs and his equal protection rights under the Fourteenth Amendment. He is seeking monetary damages. (Id., § V.)