The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FIRST SCREENING ORDER DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 1)
ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G)
I. Screening Requirement and Standard
Plaintiff Geraldine Darden, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 26, 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.
While 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, 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 678 (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 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff is incarcerated at Central California Women's Facility in Chowchilla, California, and she brings this action against Mohammad Arain, M.D., a surgeon at Madera Community Hospital, for violating her rights under the Eighth Amendment of the United States Constitution. Plaintiff seeks compensatory and punitive damages.*fn1
Plaintiff was referred to Defendant Arain by her primary care physician following the detection of a lump in her left breast. During the consultation, Plaintiff informed Defendant of her past cancer-related medical history and her family history of cancer, and they agreed that she would have a lumpectomy.
On November 22, 2011, Plaintiff signed pre-surgery instructions and on November 23, 2011, the day of surgery, she signed the consent form for a lumpectomy. After surgery, Defendant informed Plaintiff that the mass was definitely cancerous. A pathologist was present during the surgery, and Defendant told Plaintiff that he and the pathologist had seen this type of cancer before and her only chance of survival lay in a modified radical mastectomy. Plaintiff agreed to the mastectomy but she shortly thereafter had second ...