The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
SECOND SCREENING ORDER ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND WITHIN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Florence Walker ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 10, 2009. (Doc. 1.) On February 24, 2010, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 8.) On March 18, 2010, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 9.)
II. SCREENING REQUIREMENT
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 only 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.'" Id. While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is incarcerated at the Central California Women's Facility in Chowchilla, California, where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Dr. Hermosia, Dr. Sakata, RN-MTA Williams, and RN-MTA Green.
Plaintiff complains of inadequate medical care between May 2008 and September 2008, alleging as follows. Dr. Hermosia saw Plaintiff at least twice in the infirmary for open-wound sores and watery, blistery skin lesions, failed to provide Plaintiff with antibacterial preparations or other treatment, and failed to send orders to the C-Yard doctor to perform diagnostic tests or provide further treatment. Plaintiff asked Dr. Hermosia for bandages and preventative measures, but these were refused. Dr. Sakata failed to respond to repeated requests by Plaintiff to be seen. On two occasions, Dr. Sakata refused to see Plaintiff on an emergency basis when notified by RN-MTA Williams. RN-MTA Williams misdiagnosed Plaintiff's condition and was unwilling to seek immediate medical attention for Plaintiff on at least two occasions, when Plaintiff was vomiting in the medical foyer, and when Plaintiff's open-wound sores were oozing pus. Plaintiff was refused treatment and told she would be scheduled to be seen by the doctor in two to three weeks, but she was not seen for months. RN-MTA Green threatened Plaintiff with disciplinary action for initiating an emergency alarm when Plaintiff was having difficulty breathing and her blood pressure was elevated. Plaintiff requests monetary damages and injunctive relief.
IV. PLAINTIFF'S EIGHTH AMENDMENT MEDICAL CLAIM
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." Sweeney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress." Id.
"[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, 97 S.Ct. 285 (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, 1136 (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." ...