ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1)
Plaintiff Steven Hairl Wilhelm is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the Court is the complaint, filed December 31, 2009. (Compl., ECF No. 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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is currently housed at the California Substance Abuse Treatment Facility in Corcoran. Plaintiff was diagnosed with a hernia on October 7, 2005. On July 15, 2008, Plaintiff was examined by Defendant Rotman who confirmed that Plaintiff had a double hernia. On September 5, 2008, Plaintiff was seen by a surgeon, Defendant Schuster, who briefly examined Plaintiff, told him that he did not have a hernia, and refused to operate on Plaintiff. On September 8, 2008, Plaintiff submitted a medical request to see Defendant Rotman regarding Defendant Schuster's findings. (Compl. at 3, ECF 1.)
On October 12, 2008, Plaintiff submitted a letter to Defendant Rotman informing him that Plaintiff wanted to be seen about his hernia. Plaintiff saw Defendant Rotman on November 11, 2008, and requested an ultra-sound or x-ray be performed to determine if he had a hernia. Defendant Rotman informed Plaintiff that those tests would not show anything and that they would discuss his hernia at his next appointment. On December 7, 2008, Plaintiff sent a letter to Defendant Rotman requesting an appointment. On December 11, 2008, Plaintiff submitted a medical request to see Defendant Rotman. On December 24, 2008, Plaintiff saw Defendant Rotman, who indicated he would examine Plaintiff to see if he had a hernia at his next appointment. (Id. at 5.) Plaintiff saw Defendant Rotman on January 27, 2009, and was informed that he would be placed on the list for an appointment with a surgeon. During this time period Plaintiff was told that he had medical appointments on several occasions, but was not called for the appointments. (Id. at 5-6.) On March 26, 2009, Plaintiff saw Defendant Rotman again and asked why he had not been seen by the surgeon. (Id. at 6.)
On July 17, 2009, Plaintiff was interviewed in response to an inmate grievance and was told that he was removed from the list to see a surgeon because Defendant Rotman failed to file the correct paperwork. In response to a letter sent to the prison law office Plaintiff was sent to see a surgeon and surgery was scheduled. On August 26, 2009, Plaintiff was seen by Defendant Pierre who informed him that he was scheduled to be transferred to Soledad. (Id.) Plaintiff asked Defendant Pierre to put a medical hold on him so that the surgery could be performed and Defendant Pierre refused. (Id. at 6-7.)
Plaintiff alleges that he was in daily pain, endured significant pain and suffering, and was unable to do his normal exercise or daily routine for four years*fn1 due to the hernia . (Id. at 20.) He brings this suit against Defendants Rotman, Schuster, and Pierre for deliberate indifference in violation of the Eighth Amendment seeking monetary damages. (Id. at 16-1, 217.) For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.
"[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, 104 (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." Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010) (quoting Jett, 439 F.3d at 1096).
Deliberate indifference is shown where there was "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and the indifference caused harm. Conn, 591 F.3d at 1095 (quoting Jett, 439 F.3d at 1096). "Deliberate indifference is a high legal standard." Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an inference ...