The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS (ECF No. 11) THIRTY-DAY DEADLINE
Plaintiff Robert A. Hardgraves is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to the jurisdiction of the Magistrate Judge on June 28, 2011. (ECF No. 7.) On June 14, 2012, an order issued requiring Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed on the claims found to be cognizable in the complaint.*fn1 (ECF No. 10.) Plaintiff filed a first amended complaint on July 9, 2012. (ECF No. 11.)
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).
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, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
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, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (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 678-79, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, 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). 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, 556 U.S. at 678, 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, 127 S. Ct. 1955).
II. Complaint Allegations
This action is brought against Warden James D. Hartley, Chief Medical Officer Ellen Greenman, Dr. M. Boparai; Registered Nurse S. Malogi, Physician Assistant Green, Physician Assistant Safi, Chief Executive Officer of Health Care Services Donald B. McElroy, and Infectious Disease Specialist Mui alleging deliberate indifference to serious needs in violation of the Eighth Amendment. Plaintiff is seeking compensatory and punitive damages.
While housed at Avenal State Prison, Plaintiff was seen via satellite by Defendant Mui for recurring Valley Fever symptoms on December 9. Plaintiff alleges that Defendant Mui only interviewed him and refused to discuss his symptoms or examine him. On January 20, 2010, Plaintiff filed an inmate appeal requesting to be seen by an infectious disease specialist not affiliated with Defendant Mui or his office. Plaintiff was interviewed on February 14, 2010, by Defendant Safi and informed her that he had a constant runny nose, bone aches which were severe and increasing, and fatigue which were symptoms of Valley Fever. Defendant Safi denied Plaintiff's appeal at the first level stating that there was no need for referral to an infectious disease specialist because no follow-up was recommended by the specialist. (First Am. Compl. 7,*fn2 ECF No. 11.)
On March 15, 2010, Plaintiff was examined by Defendant Green for his second level appeal. Defendant Green noted that Plaintiff had occasional symptoms, but did not order any tests and refused Plaintiff's requests to see a specialist. (Id. at 8.) On March 8, 2010, Defendant Malogi failed to act, and Plaintiff filed his appeal at the third level. (Id. at 8-9.)
Plaintiff alleges that Defendants Boparai, Greenman, McElroy, and Hartley did not implement and maintain guidelines set forth in the stipulation for injunctive relief in Plata v. Davis, C-01-1351 (N.D.Cal.), denying Plaintiff his access to adequate, quality, and effective medical care. (Id. at 9-10.) Plaintiff's appeal was denied at the third level on April 29, 2010. On September 7, 2010, Plaintiff was diagnosed with Valley Fever and began receiving medication to treat his symptoms. Due to the failure to receive medical assistance for his Valley Fever, Plaintiff continues to suffer severe bone aches, joint pain, shortness of breath, lightheadedness, and fatigue. (Id. at 10.)
For the reasons set forth below, Plaintiff's first amended complaint fails to state a claim against any named defendant. In this action, Plaintiff has been granted an opportunity to amend the complaint, with guidance by the Court. Plaintiff was unable to cure the deficiencies to state a claim against any defendants under § 1983. The Court finds that the deficiencies in Plaintiff's claims against the prison officials based upon the review and denial of his inmate appeal are not capable of being cured by amendment, and therefore further leave to amend Plaintiff's claims against Defendants Hartley, Greenman, Boparai; Malogi, Green, Safi, and McElroy should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). However, the Court previously found that ...