The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 1) THIRTY-DAY DEADLINE
Plaintiff Rodrigo Esparragoza, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 17, 2009. 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, 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, 129 S.Ct. at 1950, and while factual allegations are accepted as true, legal conclusions are not, id. at 1949.
II. Plaintiff's Eighth Amendment Medical Care Claim
Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) and at the time of the events at issue in this action, he was incarcerated at Avenal State Prison.
On July 7, 2009, Plaintiff had outpatient surgery on his left ankle at an outside facility. Upon his return to Avenal State Prison, he was given a Vicodin tablet and a ducat (pass) for a follow-up visit three days later. The next day, Plaintiff reported blood seeping through his cast to a nurse and a doctor sent him over to the 390 Complex.*fn1 The doctor there told Plaintiff the bleeding and the swelling were normal, and said he was not going to remove Plaintiff's cast. Plaintiff told the doctor that the surgeon said to report any bleeding, swelling, or numbness, but the doctor said it was normal post-operative bleeding.
On July 9, 2009, Plaintiff again went to the yard clinic and reported that the bleeding had not stopped, the swelling was worse, and his toes were going numb and turning purple. At that time, Plaintiff had not yet begun to receive the medication prescribed by the surgeon. The nurse at the yard clinic sent Plaintiff back to the 390 Complex, where a nurse said his symptoms were normal. When Plaintiff told the nurse what the surgeon had said and stated things were not normal, the nurse became angry and ordered a correctional officer to place Plaintiff in a holding cell until Plaintiff was ready to speak to the nurse properly. After a half an hour, Plaintiff said to forget it and asked to be sent back to his cell. At that time, Plaintiff was in great discomfort. The nurse administered an injection, but refused to say what it was for.
On July 12, 2009, Plaintiff went to the clinic and reported that he was in great pain. Plaintiff's toes were black and mushy, and his capillary response was approximately five seconds. The nurse referred Plaintiff to the 390 Complex, and by telephone informed the doctor there about Plaintiff's condition in detail. The nurse reported that she was told by the doctor to wait an hour to see if Plaintiff's condition improved. After an hour, Plaintiff was given a bag of ice and told he would be summoned by ducat the next day.
On July 13, 2009, Plaintiff went to the clinic to get his medication and then returned to his cell. Plaintiff was later summoned to the clinic, where he was told he would be going to see Dr. Blackwell at the 390 Complex. Dr. Blackwell subsequently verified Plaintiff's capillary response was slow and directed his assistant to cut Plaintiff's cast off. The wound was weeping fresh blood, and Dr. Blackwell cleaned it, dressed it, and applied a splint. Dr. Blackwell was displeased with the condition of the wound and told Plaintiff he was referring him back to Mercy Hospital for x-rays.
At Mercy Hospital, Dr. Wisnoff told Plaintiff his cast had been on too tight and in another two days, Plaintiff might have required amputation of his toes.
Plaintiff alleges that he is still experiencing swelling, a burning sensation, and spreading numbness, and that there is a ...