The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE, AND GRANTING MOTION FOR ASSISTANCE WITH SERVICE OF PROCESS (Docs. 19 and 20) ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 1) THIRTY-DAY DEADLINE
Plaintiff Judith Ann Barnett, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California tort law on March 14, 2008. On July 1, 2009, the Court issued an order finding service of the complaint appropriate, and directing Plaintiff to complete service of process within one-hundred twenty days. On July 15, 2010, after Plaintiff's second extension of time expired, the Court ordered Plaintiff to show cause why this action should not be dismissed for failure to effect service. Fed. R. Civ. P. 4(m). Plaintiff filed a response on July 28, 2010, and requested assistance in completing service.
The Court has reviewed the case file in its entirety and finds good cause to appoint the United States Marshal effect service of process on Plaintiff's behalf. Fed. R. Civ. P. 4(c)(2). However, in light of the change in the federal pleading standard, the Court finds, upon re-screening, that Plaintiff's complaint does not state a claim upon which relief may be granted for violation of the Eighth Amendment. 28 U.S.C. § 1915A; Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The Court will provide the applicable standards and notice of the deficiencies in the sections that follow. Plaintiff is granted leave to file an amended complaint. If the amended complaint states cognizable claims for relief, Plaintiff may rely on the Marshal to effect service, at the Court's direction.
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).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (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). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are accepted as true, legal conclusion are not, id. at 1949.
III. Plaintiff's Eighth Amendment Medical Care Claim
Plaintiff is incarcerated at the Central California Women's Facility in Chowchilla. On October 6, 2006, Plaintiff was seen by medical staff for wrist pain. An x-ray was taken on January 4, 2007, and an MRI was done on April 10, 2007. On May 17, 2007, Plaintiff was referred to UC Davis for a consultation, which occurred on September 12, 2007. Plaintiff was diagnosed with Stage 4 Kienbock's Disease, which is progressive osteochondrosis of the semilunar bone. Stedman's Medical Dictionary 484 (28th ed. 2006). Plaintiff underwent surgery on January 3, 2008, and the surgeon indicated a possible recovery period of up to one year.
Although acknowledging that the disease is difficult to diagnose, Plaintiff contends that due to the delay in diagnosis and treatment, she had to have surgery and the options for Stages 1-3 of the disease were not available to her. Further, an additional surgery to fuse her wrist may be necessary, which will completely disable her right hand. Finally, Plaintiff is allergic to the pain medication prescribed, and her requests for a medication change and a pillow were initially denied. Plaintiff contends that all post-surgical rehabilitation, which includes medication, follow-up consultations and physical therapy, is at risk. Plaintiff contends that Defendant Suryadevara, as Chief Medical Officer, is liable under the theory of respondeat superior, and that Defendants Iyer and Sakata were aware of the delays via the inmate appeals process.
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" ...