The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF No. 30) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Jose A. Vega ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 16, 2007. (ECF No. 1.) Plaintiff's original complaint was dismissed on January 13, 2009 for failure to state a claim. (ECF No. 15.) He filed a First Amended Complaint on May 8, 2010. (ECF No. 19.) On February 10, 2010, Plaintiff was given leave to file a Second Amended Complaint (ECF No. 25); the Second Amended Complaint was filed February 24, 2010. (ECF No. 26.) The Second Amended Complaint was dismissed with leave to amend on August 27, 2010. (ECF No. 29.) Plaintiff filed a Third Amended Complaint on October 5, 2010. (ECF No. 30.) It is this Third Amended Complaint which is now before the Court.
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. PLAINTIFF'S ALLEGATIONS
Plaintiff is a state prisoner confined in Pleasant Valley State Prison ("PVSP") where the events at issue occurred. Plaintiff alleges that at about 5:50 a.m. on January 4, 2007, he fell into hot oil on a grill in the prison kitchen and burned his left hand and fingers. Defendant Danielson, the Supervising Cook, escorted Plaintiff into a walk-in freezer and instructed him to place his hand in a bucket of mustard. Plaintiff followed these instructions and remained standing in the walk-in freezer with his hand in a bucket of mustard for about thirty minutes until Defendant Danielson escorted him to the medical clinic. Two days later, on January 6, 2007, Plaintiff was transported to Fresno Community Hospital Burn Center where he was treated and told to return in two weeks.
On January 8, Plaintiff informed prison staff that he was in pain and that he was supposed to have a follow up appointment at the burn center. Defendant Castillo, a prison doctor, gave Plaintiff pain medication but failed to set up the follow-up appointment at the burn center. He also did not do any testing to determine why Plaintiff could not move his hand properly. Between January 8 and January 17, Plaintiff was in pain and lost function in his hand. On January 17, Plaintiff returned to the medical clinic seeking aid. He was again seen by Defendant Castillo, who, again, did not test Plaintiff's hand to determine the reason for the loss of functionality and informed Plaintiff that he did not see any record for a follow-up appointment to the burn center.
Although not specified by Plaintiff, he appears to be claiming a violation of his Eighth Amendment rights. Plaintiff asserts that Defendant John Doe in medical records failed to schedule Plaintiff's appointment with the burn center, Defendant Danielson failed to seek immediate medical treatment for Plaintiff's injuries, and Defendant Costillo failed to order tests to determine a reason for the dysfunction of Plaintiff's hand and failed to find out about the follow-up appointment.
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 federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
Plaintiff alleges violations of his Eighth Amendment right to adequate medical care. "[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, 106 (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, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at ...