ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 15) 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"). Currently before the Court is Plaintiff's first amended complaint, filed November 4, 2010. (Doc. 15.) 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, while incarcerated at High Desert State Prison ("HDSP"), he fell and broke his wrist. After Plaintiff was seen by a specialist in Reno, x-rays revealed a bone fracture, and he was informed that surgery was needed. His wrist was placed in a cast and he was sent transported back to HDSP. (Doc. 15, Amend. Comp., § IV.) Plaintiff alleges that he did not receive surgery while he was housed at HDSP, however, since venue for these events does not lie in this Court, these claims will not be detailed in this order.
On October 1, 2009, Plaintiff was transferred to Pleasant Valley State Prison ("PVSP"), where Defendant James T. Yates was warden. (Id., p. 5:24-25.) Plaintiff alleges that Defendant Yates and his medical staff were aware of the course of treatment chosen by HDSP and were deliberately indifferent to his medical needs, causing a loss of function to his left wrist. (Id., p. 5:26- 6:5.) On August 9, 2010, Plaintiff received surgery at Tehachapi Surgery Center. (Id., p. 6:11-13.)
Plaintiff brings this action naming Defendants Yates and Defendants Swingle, Nepomuceno and Medina all employed at HDSP. He is seeking $1,400,000. in damages. For the reasons set forth below, the Court finds Plaintiff's complaint fails to state a cognizable claim against Defendant Yates.
1. Eighth Amendment Medical Care
[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show "deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "a 'serious medical need' by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
Deliberate indifference is shown where there was "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and the indifference caused harm. Jett, 439 F.3d at 1096. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an inference that "a substantial ...