The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 1)
Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1).
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 fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Plaintiff, formerly an inmate in the custody of the California Department of Corrections (CDCR) and Rehabilitation at Avenal State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at Avenal State Prison. The events that give rise to this lawsuit occurred while Plaintiff was housed at Avenal. Plaintiff claims that defendants were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Plaintiff names the following defendants employed by the CDCR at Avenal State Prison: Warden James Hartley; Physician's Assistant Barry Green; Licensed Vocational Nurse (LVN) Rush; LVN Johns; LVN Klester; LVN Salazar.
On October 30, 2008, Plaintiff was escorted to the medical clinic at Avenal, complaining of "violent coughing and flu like symptoms." Plaintiff was treated with tylenol and was released. (Compl. ¶ IV.) Plaintiff alleges that on November 11, 2008, he "went man down" and was taken to the medical clinic and seen by defendant Physician's Assistant Greene. Plaintiff complained of body aches, night sweats, and difficulty breathing. Plaintiff offered his own opinion that he suffered from valley fever. Id. Plaintiff alleges that he was told that nothing was wrong, and left the clinic "without a full examination and without a chest x-ray to determine the true cause of my breathing problem." Id.*fn1 Plaintiff went "man down" on November 17, 2008, and was taken to the medical clinic. Plaintiff alleges that he was "turned around by RN Salazar after hearing weazing [sic] in my lungs for a future doctor's appointment in which the entire time I've been suffering from valley fever and pneumonia." Id. Plaintiff alleges that "staff" sent Plaintiff back to his housing unit with life threatening injuries. (Compl. ¶ V.)*fn2
On November 19, 2008, Plaintiff returned to the medical clinic. After a chest x-ray, Plaintiff was transported to Coalinga Medical Center where he was diagnosed with pneumonia and valley fever. Plaintiff was told by the physicians at the Coalinga Medical Center that his lungs were "very nasty." Id. Plaintiff spent two weeks in the hospital. Plaintiff alleges that the infection was "induced by the delay of my medical treatment and care by Avenal State Prison's (Warden) James Hartley and P.A. - C Barry Green, (RN) Salazar, (RN) John's, (RN) Kush." Id.
To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). "A person deprives another of a constitutional right, where that person 'does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.'" Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). "[T]he 'requisite causal connection can be established not only by some kind of direct, personal participation in the ...