The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON EIGHTH AMENDMENT CLAIM AGAINST DEFENDANT ROMERO AND REMAINING CLAIMS AND PARTIES BE DISMISSED (Doc. 11) THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendations Following Screening of Amended Complaint
I. Screening Requirement and Standard
Plaintiff Chester Ray Wiseman, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 6, 2010. On March 4, 2011, the Court screened Plaintiff's complaint and dismissed it, with leave to amend, for failure to state any claims. Plaintiff filed an amended complaint on March 21, 2011.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, 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).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff, who is currently incarcerated at Pleasant Valley State Prison, brings this action against Correctional Officer A. Romero, California Department of Corrections and Rehabilitation Director Matthew Cate, and Warden K. Harrington for allegedly violating his rights under the Eighth Amendment of the United States Constitution while he was incarcerated at Kern Valley State Prison in Delano, California. Plaintiff also alleges a supplemental state law claim for violation of section 845.6 of the California Government Code.
Plaintiff alleges that on June 20, 2009, he injured himself while descending from his upper bunk. Plaintiff twisted his left knee as he stepped onto a stool and he fell to the floor, striking his back on the stool. Plaintiff's cellmate called "man down" to obtain emergency medical care. There was no response and when his cellmate went downstairs to collect his food, he informed Defendant Romero that Plaintiff was lying on the cell floor, apparently badly injury. Without checking into the extent of Plaintiff's injuries, Defendant Romero responded that morning meals were being served and nothing could be done, and he gave Plaintiff's cellmate a health care request form for Plaintiff to fill out and submit to medical staff.
Plaintiff's cellmate returned to the cell and helped Plaintiff off the floor. Plaintiff was subsequently seen for medical attention on June 24, 2009, when his injuries were examined and documented by a nurse. Plaintiff was given an x-ray of his left knee, a bandage wrap, and pain medication, but it was too late to apply ice for the swelling.
On June 29, 2009, Plaintiff was seen by a doctor, who examined Plaintiff and issued braces for both knees, crutches, medication, and a lower bunk, lower tier chrono. Plaintiff informed Defendant Romero about the lower bunk, lower tier chrono; Defendant Romero told him that until a lower bunk on a lower tier became available, Plaintiff would have to remain in his assigned bunk and cell. Defendant Romero moved ...