The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE (ECF No. 27)
Plaintiff Nokkuwa K. Ervin ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 10, 2011, an order issued dismissing the first amended complaint for failure to state a claim and granting Plaintiff leave to file an amended complaint. (ECF No. 22.) Currently pending before the Court is the second amended complaint, filed September 29, 2011. (ECF No. 27.)
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, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (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 and is housed at Kern Valley State Prison ("KVSP"). Plaintiff alleges that after he was transferred to KVSP he was denied an egg crate mattress and orthopedic shoes for non-medical reasons. In June 2008, Plaintiff was issued a rule violation for possession of drugs which his cell mate admitted belonged to him. Plaintiff complains that during the rule violation hearing he was denied the right to present witnesses and defend himself against the accusations. In July 2009, Plaintiff was issued a rule violation for battery on an inmate and was denied due process during the rule violation hearing. Plaintiff brings this action against Defendants M. Biter, J. Akanno, Shittu, G. Adams, R. Costina, D. Page, T. S. Arlitz, M. Miranda, S. Lopez, and R. Cruz seeking declaratory and injunctive relief and compensatory and punitive damages.
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given one final opportunity to file an amended complaint curing the deficiencies described by the Court in this order. Plaintiff is referred to the order issued August 10, 2011 for additional legal standards that could apply to his claims.
A. Deliberate Indifference to Medical Needs
"[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, 291 (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.
Deliberate indifference is shown where the official is aware of a serious medical need and fails to adequately respond. Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1018 (9th Cir. 2010). "Deliberate indifference is a high legal standard." Simmons, 609 F.3d at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an inference that "a substantial risk of serious harm exists" and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994).
While Plaintiff alleges that he was denied an egg crate mattress and orthopedic shoes, he fails to allege facts that show he had a serious medical need. Additionally, Plaintiff's allegations that Defendants Shittu, Akanno*fn1 , and appeal reviewers interfered with the orders of specialists by failing to provide an egg crate mattress and orthopedic shoes merely state a difference of opinion between medical providers regarding ...