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. 1)
Plaintiff Robert Villa is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed June 30, 2011. (ECF No. 1.)
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
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at the California Correctional Institution ("CCI"), Tehachapi. Plaintiff brings this action against Warden F. Gonzalez, Chief Deputy Warden K. Holland, Chief Medical Officer A. Joaquin, Chief of Prison Health Care Services Office of Third Level Appeals N. Warren, Chief Physician S. Shiesha, Dr. M. Garikaparthi, Dr. M. Vu, and LVN D. Davidson alleging deliberate indifference to serious medical needs in violation of the Eighth Amendment. (Compl. ¶¶ 2, 5, ECF No. 1.)
On May 21, 2010, Plaintiff was transferred from Centinela State Prison to CCI. Prior to being transferred, Plaintiff had x-rays taken of his lower back and never received the results. (Id. at ¶ 6.) On June 2, 2010, Plaintiff explained to Defendant Vu about his chronic back problems and Defendant Vu ordered x-rays and ibuprofen. (Id. at ¶ 7.) Plaintiff's back pain continued to get worse and he eventually lost all function in his legs. (Id. at ¶ 9.)
On July 20, 2010,*fn1 Plaintiff was seen by Defendant Grikaparthi. Defendant Grikaparthi prescribed Indomethacin and ordered x-rays because Defendant Vu had not ordered them. (Id. at ¶ 11.) Plaintiff's x-rays were taken on July 27, 2010, and the x-ray technician told the escorting officers that Plaintiff had a back fracture and other inconsistencies. (Id. at ¶ 13.) On August 17, 2010, Defendant Garikaparthi stated nothing was wrong and reissued Indomethacin. (Id. at ¶ 14.) Plaintiff explained to Defendant Garikaparthi that he had a tingling sensation and numbness in his feet and his lower back was in constant pain. (Id. at ¶ 15.) Defendants Davidson, Shiesha, and Warren denied Plaintiff's inmate appeal. (Id. at ¶ 26.)
Plaintiff alleges that Defendants Joaquin, Shiesha, Garikaparthi, Vu, and Davidson refused to conduct a proper physical examination of Plaintiff in a timely manner or order proper medication for Plaintiff's pain. (Id. at ¶¶ 19, 20.)
For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully ...