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
Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unkown Agents, 403 U.S. 388 (1971). 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 § 1983 actions. Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (512) (2002).
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 defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (209), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief,'" which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, a plaintiff must set forth the legal and factual basis for his claim.
The events at issue in this action occurred at the U.S. Penitentiary at Atwater, where Plaintiff is currently housed. Plaintiff claims that he was denied constitutionally adequate medical care, in violation of the Eighth Amendment. Plaintiff names the following individual defendants: Hector Rios, Warden at Awater; Assistant Warden Bell; J. Franco, M.D.; L. Metry, R.N.
In March of 2006, Plaintiff was examined by a urologist, and advised that he had a hernia. Plaintiff was advised that the hernia was "nothing to worry about." (Compl. ¶ 17.)
In December of 2008, Plaintiff presented to medical with a painful bulge in his lower right abdomen. Plaintiff was examined by a physician from Mercy Hospital in Merced, and diagnosed with three separate hernias. (Compl. ¶¶ 18, 20.) On January 22, 2009, Plaintiff underwent surgery at Mercy Hospital for his hernias. Plaintiff was treated for a left and right inguinal hernia and an umbilical hernia. (Compl. ¶ 22.)
Plaintiff alleges that despite his complaints, "HSD and other USP Atwater staff ignored Plaintiff's request for medical assistance." (Compl. ¶ 24.) Plaintiff was seen by Dr. Sandberg on April 24, 2009, "due to swollen scrotum and sore right testicle." (Compl. ¶ 25.) Plaintiff alleges that the soreness and swelling was a result of "post-surgery medical negligence and malpractice." (Compl. ¶ 26.) Plaintiff was prescribed ibuprophen which, in Plaintiff's view, "was only masking the existing complications of pain and problems." (Compl. ¶ 27.)
Plaintiff had his hearing tested three times: July 17, 2007; November 26, 2007; December 31, 2008. Plaintiff alleges that the tests "showed that Plaintiff's hearing pattern had been diminishing." (Compl. ¶ 33.) Plaintiff alleges that, to date, and despite numerous requests, he has ...