The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
WITHIN THIRTY DAYS FIRST AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE SECOND SCREENING ORDER
Plaintiff James Suknaich ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). He is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on March 13, 2009, and consented to Magistrate Judge jurisdiction on March 27, 2009. (ECF Nos. 1 & 7.) No other parties have appeared. Plaintiff's original Complaint was dismissed for failure to state a cognizable claim on June 26, 2009. (ECF No. 10.) Plaintiff was granted leave to amend, and his First Amended Complaint was filed August 31, 2009. (ECF No. 13.) It is this Amended Complaint that is now before the Court for screening.
For the reasons set forth below, the Court finds that Plaintiff's First Amended Complaint fails to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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).
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 (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.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff alleges violations of his Eighth Amendment rights to be protected and receive adequate medical care and his Fourteenth Amendment right to due process. Plaintiff names the following individuals as Defendants: James Yates, Warden; Hartley, Captain of B Yard CDCR Staff; Castro, MTA or Nurse for B Yard CDCR Staff; and fifteen John Does, various positions CDCR Staff. At the time of the incident, all Defendants were employed at Wasco State Prison ("WSP").
Plaintiff alleges as follows: On September 8, 2005, Plaintiff was attacked and beaten by two other inmates at WSP. Plaintiff, who is a "sensitive needs yard" ("SNY") prisoner*fn1 , was waiting, with other SNY inmates and a prison guard, for a gate to be opened. Several general population ("GP") inmates approached and began questioning the guard escorting the SNY prisoners. The guard informed the GP inmates that Plaintiff and the inmates with him were SNY prisoners. Two of the GP inmates then attacked Plaintiff.
Plaintiff was placed in a wheel chair and taken into a wheel chair cage. He was interviewed by Defendant Castro regarding the attack and his resulting injuries. Plaintiff informed Defendant Castro that his head and back hurt. Defendant Castro sent Plaintiff back to his cell. Plaintiff became ill several times. Defendant Castro returned with a wheel chair and took Plaintiff to the doctor. The doctor sent Plaintiff to an outside hospital where he was treated for a concussion. Plaintiff's back symptoms were not treated. Plaintiff then returned to the prison. He did not receive medical treatment again until three days later.
Plaintiff eventually had surgery on his back. At the time of surgery, he was informed that if his back had been treated earlier, the doctor would have been able to do more for him and he would not have been in pain for four years.
Plaintiff does not appear to make any request for relief.
The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the ...