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
(ECF No. 13.)
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. This action was filed on June 20, 2011. On June 14, 2012, an order issued requiring Plaintiff to either file an amended complaint or notify the court that he was willing to proceed on the claims found cognizable in the complaint. (ECF No. 10.) On July 9, 2012, Plaintiff filed a first amended complaint. (ECF No. 11.) On July 31, 2012, Plaintiff's first amended complaint was dismissed, with leave to amend his claims against Defendant Mui, for failure to state a claim. (ECF No. 12.) Plaintiff filed a second amended complaint on August 16, 2012. (ECF No. 13.)
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 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)).
III. Second Amended Complaint Allegations
Defendant Mui is an infectious disease specialist who was contracted to provide health care services at Avenal State Prison ("Avenal"). (Sec. Am. Compl. 4,*fn1 ECF No. 13.) On December 9, 2009, Plaintiff was seen by Defendant Mui by video conference for recurring symptoms of Valley Fever. Defendant Mui interviewed Plaintiff, but refused to discuss his symptoms, ignoring his recurring symptoms, and refused to examine Plaintiff. (Id. at 5.)
Plaintiff alleges that Defendant Mui was aware that there was an outbreak of Valley Fever at Avenal, that inmates were contracting the disease, and suffering permanent damage due to poor detection and no early intervention. Due to the fact that Defendant Mui denied Plaintiff medical care, he suffered from chronic bone aches, joint pain, shortness of breath, lightheadedness, and fatigue for more than ten months, and was denied all treatment by medical staff at Avenal.*fn2 (Id.)
Plaintiff was examined and diagnosed with Valley Fever on September 7, 2010, and was prescribed medication that relieved most of the pain and caused his bouts of dizziness, lightheadedness, and fatigue to occur less often. (Id. at 6.)
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.
Plaintiff was previously informed that he must set forth sufficient factual detail for the court to reasonably infer that Defendant Mui acted with the requisite state of mind to state a claim of deliberate indifference. Plaintiff's second amended complaint fails to set forth any additional factual allegations regarding the interview with Defendant Mui. Even if Defendant Mui was aware of the outbreak of Valley Fever at Avenal, that is insufficient to show that he was aware that Plaintiff was at a serious risk of harm and failed to adequately respond. Plaintiff's allegation that he had recurring symptoms of Valley Fever does not demonstrate that at the time of his appointment, Defendant Mui was aware that Plaintiff was suffering from symptoms that required treatment. Plaintiff's ...