The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING THIS ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED, WITHOUT PREJUDICE TO FILING A NEW CIVIL RIGHTS COMPLAINT ADDRESSING THE CLAIMS AGAINST DEFENDANTS RUVALCABA AND AW (Doc. 10.) ORDER FOR THIS DISMISSAL TO BE SUBJECT TO THE THREE-STRIKES PROVISION SET FORTH IN 28 U.S.C. § 1915(g) ORDER FOR CLERK TO CLOSE CASE
Clyde C. Helms ("Plaintiff") a prisoner incarcerated at the Kern County Maximum-Medium Facility (Lerdo) in Bakersfield, California, is proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 1, 2012. (Doc. 1.) On June 13, 2012, Plaintiff consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
On August 23, 2012, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 9.) On August 30, 2012, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 10.)
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 Afrivolous 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). ANotwithstanding 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 is required to contain Aa 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 A[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 (2007)). While a plaintiff=s allegations are taken as true, courts Aare 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). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. 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. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
The events at issue in the First Amended Complaint occurred at the Fresno County Jail (Jail) in Fresno, California, when Plaintiff was housed there as a pretrial detainee. Plaintiff names as defendants Margaret Mims (Fresno County Sheriff), Edward Moreno (M.D.), George Laird (Ph.D.), Pratap Narayen (M.D.), Dr. Paul Ruvalcaba, and Dr. Aw. Plaintiff's factual allegations follow.
Plaintiff is physically disabled within the meaning of the ADA, due to a hip replacement and several reconstructive surgeries. In addition, Plaintiff's right knee is completely destroyed, and he is in need of knee surgery. He is also in need of a wheelchair, because his right knee cannot support his 350-pound frame.
Defendants Sheriff Mims, Dr. Moreno, and Laird (Ph.D.) work together to supervise the delivery of health care at the Jail. Under direct orders from these supervisors, Dr. Ruvalcaba and Dr. Aw provide inadequate medical care for Jail inmates, including Plaintiff. Plaintiff has been wrongly housed, denied access to his wheelchair, and forced to walk on a severely damaged leg and hip.
On April 21, 2012, Plaintiff submitted his first request to be seen by medical personnel about a crack under his toe. Now Plaintiff has an infected hole under his big toe and is in serious threat of losing his big toe. Early in 2012, Plaintiff's attorney attempted to contact Dr. Laird by email about the seriousness of his medical condition, his improper housing, and his need for a wheelchair, but all attempts were ignored.
Dr. Ruvalcaba refused to properly diagnose the problem. On July 30, 2012, Plaintiff saw Dr. Ruvalcaba for the hole in his left big toe. Plaintiff explained his reasoning behind the injured toe, repeatedly explaining about his disabilities. Dr. Ruvalcaba responded sarcastically with his own opinions, showing deliberate indifference to the seriousness of Plaintiff's wound, which was caused by ...