The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE ANY CLAIMS (Doc. 1) THIRTY-DAY DEADLINE
I. Screening Requirement and Standard
Plaintiff Charles Stewart, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 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 Eighth Amendment Medical Care Claims
A. Summary of Allegations
Plaintiff, who is currently incarcerated at the California Substance Abuse Treatment Facility (SATF) in Corcoran, brings this action against prison officials for violating his rights under the Eighth Amendment of the United States Constitution during the time he was incarcerated at SATF and at the California Correctional Institution (CCI) in Tehachapi.
On June 26, 2005, while at CCI, Plaintiff had a seizure and fell down a steel staircase to the concrete floor below. Plaintiff injured his shoulder, hip, and lower back. At that time, Plaintiff had a medical chrono for lower tier, lower bunk housing based on his severe seizure disorder and a hole in the right side of his head from a gunshot wound. However, Plaintiff had been moved to an upper tier on June 16, 2005.
After Plaintiff's fall, he was taken to the prison's hospital and doctors determined that he needed x-rays, an MRI, and a CT scan. Plaintiff received x-rays, which ruled out broken bones, but he never received the MRI or CT scan.
In May 2006, Plaintiff was transported to Mercy Hospital and diagnosed with osteomyelitis caused by a staph infection. Plaintiff alleges that he suffered from this condition because prison officials at CCI failed to treat his pre-existing head injury from the gunshot. A plate was placed in Plaintiff's head and he alleges that doctors at the hospital told him that simple antibiotics could have prevented the issue.
On February 12, 2009, Plaintiff was transferred to SATF. Plaintiff alleges that he is being denied adequate medical care and a referral to a neurologist for removal of the metal plate, which is causing a dent near his eyes. Medical staff keep ...