The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING DUE PROCESS AND SECTION 845.6 CLAIMS WITH PREJUDICE, AND DISMISSING COMPLAINT WITH LEAVE TO AMEND EIGHTH AMENDMENT MEDICAL CARE CLAIM (Doc. 1)
I. Screening Requirement and Standard
Plaintiff Ester Burnett, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on May 3, 2010. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
II. Plaintiff's Complaint
A. Summary of Allegations
Plaintiff, who is currently incarcerated at High Desert State Prison in Susanville, brings this action against Chief Medical Officer Jack St. Clair, Warden Clay, and John Doe for violating his rights under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution while he was at the Sierra Conservation Center in Jamestown. Plaintiff also alleges a claim for violation of California Government Code section 845.6.
On February 6, 2007, Plaintiff was seen by an outside physician for an evaluation of chronic lower back pain radiating to his lower right extremity. (Doc. 1, Comp., court record p. 16.) The physician, Dr. Bai, recommended an epidural steroid injection in light of the fact that Plaintiff had tried conservative treatment without significant improvement. (Id., p. 17.) Plaintiff was scheduled for a lumbar epidural injection on June 7, 2007, but he ended up attending a classification hearing instead. (Id., p. 25.) Plaintiff was then transferred to Centinela State Prison on June 28, 2007, without having received the recommended injection. (Id.)
B. Eighth Amendment Medical Care Claim
To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970 (1994).
Although Plaintiff blames Defendants St. Clair and Clay for the cancellation of his appointment on June 7, 2007, Plaintiff's more specific allegations and his exhibits make it clear that Plaintiff does not know who cancelled the appointment. It is unclear if Defendant Clay had any personal involvement in the events at issue here, and neither Defendant St. Clair nor Defendant Clay may be held liable under section 1983 simply because they hold positions of ...