The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FIRST SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 1) THIRTY-DAY DEADLINE
Plaintiff Arthur D. Finch, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 21, 2012. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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 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, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
A. Summary of Allegations
Plaintiff, who is currently incarcerated at Salinas Valley State Prison, brings this action against Warden James D. Hartley, Chief Medical Executive Robert Chapnick, Doctor Jasmine Biol, and Physician's Assistant Nancy L. Seigrist for violating his rights under the Eighth Amendment of the United States Constitution while he was at Avenal State Prison.*fn1
Plaintiff alleges that on July 11, 2010, he was admitted to Coalinga Regional Medical Center with pneumonia and bronchitis. Plaintiff was diagnosed with Valley Fever and discharged on July 13, 2010.
Nine months later, Plaintiff was seen by Defendant Biol on April 28, 2011, and she told him that the Valley Fever was gone and she was taking him off of Fluconazole. Plaintiff expressed his concern because he was supposed to be on the medication for one year. While Plaintiff appeared to be getting better at times, he was still coughing up phlegm, his bones were aching, and he still had shortness of breath and night sweats.
One week later, Plaintiff saw Defendant Seigrist and expressed his concern over being taken off of Fluconazole. Defendant Seigrist dismissed Plaintiff's concerns and concurred with Defendant Biol's decision to discontinue the medication.
Despite drinking plenty of water and exercising to strengthen his body, Plaintiff was again diagnosed with Valley Fever on or around September 13, 2011. Plaintiff had ...