The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 51) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Thomas D. Braley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is the Second Amended Complaint, filed June 10, 2011.
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 ("CDCR") and is currently housed at Salinas Valley State Prison. Plaintiff brings this action against Defendants M. Markmann, Williams, Martinez, Massa, George, Thompson, L. A. Miller, Wasco State Prison, C. Cooper and M. Hunter for violations of the Eighth Amendment seeking damages and injunctive relief.
On August 9, 2007, while incarcerated at Wasco State Prison, inmate Gary Battle was moved into Plaintiff's cell. Plaintiff alleges that ninety percent of the prison staff know inmate Battle from past cell fights. Inmate Battle went through Plaintiff's personal property and would kick and throw Plaintiff's wheelchair. On August 12, 2007, Plaintiff informed Defendant Markmann about inmate Battle. (Second Amended Compl. 3, ECF No. 51.) From August 14, 2007 through August 26, 2007, Plaintiff informed different correctional officers that he wanted inmate Battle moved. (Id. at 4.)
On August 27, 2007, inmate Battle told Defendant Markmann that he was going to kill Plaintiff if he was not moved out of the cell. (Id.) On September 9, 2007, Defendant Markmann returned from days off and spoke to Plaintiff regarding writing Defendant Markmann up for not moving inmate Battle. Defendant Markmann told Plaintiff that he was not moving inmate Battle.
On September 17, 2007, inmate Battle attacked Plaintiff. Defendant L. A. Miller saw Plaintiff being attacked by inmate Battle and walked away. After the attack, Plaintiff was taken to the medical clinic. (Id. at 5.) A female LVN began to chart Plaintiff's wounds, but someone came up and pushed Plaintiff back to his cell. Plaintiff asked floor staff to let him see a doctor and they ignored him. Finally at 10:00 p.m. the floor officer called for a nurse. A nurse came and cleaned Plaintiff's wounds and told him that he would be scheduled for x-rays. Plaintiff did not receive an x-ray until September 20, 2007. (Id. at 6.)
On September 25, 2007, Dr. Castillo placed a cast on Plaintiff's left arm because it was broken. During the visit Plaintiff told Dr. Castillo that from September 22 through 24, 2007, attempts were made by medical staff to provide Plaintiff with medication, but he did not receive the medication. Dr. Castillo corrected the mistake. (Id.)
Plaintiff has stated a cognizable claim against Defendants Markmann and L. A. Miller for failure to protect in violation of the Eighth Amendment, but has ...