The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1)
AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
On November 9, 2010, Plaintiff Arthur Luna, 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's Complaint is before the Court for screening.
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).
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, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949--50.
III. SUMMARY OF COMPLAINT
Plaintiff is incarcerated at the California Department of Corrections and Rehabilitation, Corcoran Substance Abuse Treatment Facility and State Prison, ("CSATF/SP"). (Compl. p. 1, ECF No. 1.) Plaintiff complains that he fell from his bunk at CSATF/SP on May 16, 2009, injuring surgical work that had been done on his left shoulder a month earlier. (Id. at 9-11.) Defendants were deliberately indifferent to his resulting serious medical needs in violation of the Eighth Amendment and California Code of Civil Procedure Sections 338-340 and 425.12. (Id. at 5, 28-29.) Plaintiff also alleges that he was discriminated against because of his pre-existing permanent hearing impairment. (Id. at 9.)
Plaintiff names the following Defendants in their official and individual capacities: (1) California Health Care Services ("CHCS"), (2) CSATF/SP, (3) Delano, LVN, (4) Ugwueze, Physician, (5) Does I-V at CSATF/SP. Plaintiff seeks injunctive relief and compensatory and punitive damages. (Id. at 2, 6.)
Plaintiff had shoulder surgery on April 21, 2009. He alleges that he re-injured the shoulder in the May 16th fall. (Id. at 9.) He was seen by Defendant Delano shortly after the fall. (Id. at 9, 11.) She was disrespectful and unprofessional, and she accused him of lying about the injury. She teased him about his hearing impairment and was biased against him because of it. (Id.) She told him his shoulder was not broken, allegedly without examining/touching it. (Id.) She advised him to promptly put in a medical slip to get an x-ray and follow-up treatment. (Id.) Subsequent x-ray showed dislocation of a screw placed in Plaintiff's shoulder during the April 21st surgery, necessitating additional surgery and impacting Plaintiff's daily activities. (Id. at 8, 28.) On June 1, 2009, a non-party, Dr. Smith prescribed morphine for the shoulder injury, but Plaintiff alleges he has not received any. (Id. at 26-27.)
Defendant CSATF/SP has custody of Plaintiff and is responsible for his medical care. (Id. at 23.) Defendant CHCS is responsible for hiring and retention of medical staff at CSATF/SP and providing prisoners with medical services. (Id.) Defendant Delano is employed by California Department of Corrections and Rehabilitation as a Licensed Vocational Nurse, (Id. at 24.) Defendant Ugwueze is employed by California Department of Corrections and Rehabilitation as a physician at CSATF/SP. (Id. at 24.) Defendant Ugwueze was responsible for supervising and training CSATF/SP medical staff, and according to Plaintiff he denied medical treatment for Plaintiff's shoulder injury. (Id. at 24-25, 27.) Plaintiff states that Defendant Does I-V at CSATF/SP denied him access to x-ray or emergency medical treatment. (Id. at 27.)
To state a claim under Section 1983, a plaintiff must allege two ...