ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 11) THIRTY-DAY DEADLINE
Plaintiff Moody Woodrow Tanksley ("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 January 18, 2010. (Doc. 1.) On July 23, 2009, the complaint was screened by the Magistrate Judge and dismissed, with leave to amend, for failure to state a claim. (Doc. 9.) Currently before the Court is the first amended complaint, filed August 19, 2009. (Doc. 11.)
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)).
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). "[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
Plaintiff is currently housed at Atascadero State Hospital. On October 12, 2007, while housed at Coalinga State Hospital, Plaintiff alleges that prison officers and medical staff thought he was lying about having blood clots. Plaintiff was sent to the Coalinga Medical Clinic for several days due to blood clots in his legs. He alleges the Medical Clinic refused to treat the blood clots. On December 10, 2007, Plaintiff saw Defendant DePaulo. Plaintiff states that he was in the hospital from December 17, 2007 to December 10, 2007. On January 12, 2008, prison staff still thought that he was lying about the blood clots in his legs and wanted him dead. On an unknown date, Plaintiff was placed at Avenal State Prison. (Doc. 11, Amend. Comp., § IV.)
Plaintiff brings suit against Defendants Blackwell, DePaulo, Thompson, Murgallis, Carpenter, Seal, Scribner, and Lopez in their individual and official capacities, seeking four million dollars from each defendant. (Id., § V.)
"[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 risk of serious harm exists" and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Despite having previously been provided with the legal standards that apply to his claim, Plaintiff fails to allege facts that any individual named defendant committed any act or failed to act to provide him with medical care. Iqbal, 129 S.Ct. at 1948. Additionally, Plaintiff has not set forth how he was harmed by any act or failure to act. Jett, 439 F.3d at 1096. Plaintiff cannot state a claim by merely stating that medical records exist. Plaintiff has failed to state a claim against any named defendant. The Court will grant Plaintiff one final opportunity to amend the complaint to correct the deficiencies ...