The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 9) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER
On December 10, 2009, Plaintiff Carlos Alvarez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No.
1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.)
The original complaint was screened and dismissed, with leave to amend, on July 29, 2011. (ECF No. 8.) Plaintiff's First Amended Complaint, filed September 6, 2011, is now before the Court for screening. (ECF No. 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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
III. SUMMARY OF COMPLAINT
The First Amended Complaint alleges the following named defendants violated Plaintiff's Eighth Amendment rights: (1) the medical staff of Chino State Prison ("Chino"); (2) the medical staff of Corcoran State Prison ("Corcoran"); (3) Dr. Neubarth, Corcoran; and (4) the State of California.
Plaintiff alleges the following:
Plaintiff injured his knee and back at Chino on September 30, 2005. (Compl. at 6.) He was transferred to Corcoran twelve days later. (Id. at 5.) Chino staff was aware of Plaintiff's injuries because an incident report "must have been" filed. (Id. at 4.) Plaintiff did not receive medical treatment at Chino for his injuries during the twelve days he was there before his transfer to Corcoran. (Id.) "At Corcoran [Plaintiff] was assigned to a upper bunk . . . without concern of how [Plaintiff could] climb without hurting his knee and back." (Id. at 6.) Plaintiff saw Dr. Neubarth in February of 2006. Dr. Neubarth was the first doctor to see Plaintiff after his injury; he provided no treatment. (Id. at 5.) Plaintiff began receiving appropriate medical care for his knee on April 19, 2006 and for his back on November 19, 2008. (Id. at 6.) He currently walks with a cane and a knee brace and has yet to undergo surgery. (Id.)
To state a claim under Section 1983, a plaintiff must allege two ...