The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM ECF No. 39 OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff Duane Dixon ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On June 8, 2011, the Court dismissed this action with prejudice for failure to state a claim. ECF No. 19. Plaintiff appealed the judgment. On November 8, 2012, the United States Court of Appeals for the Ninth Circuit reversed and remanded to permit Plaintiff to file a second amended complaint. On November 29, 2012, Plaintiff filed his Second Amended Complaint. ECF No. 39.
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 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. Id. § 1915A(b)(1),(2). 2
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 5
A complaint must contain "a short and plain statement of the claim showing that the pleader 6 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Second Amended Complaint
Plaintiff was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: medical doctors J. Akanno, M. Spaeth, and M. Rodriguez, and Doe Defendants 1 through 3, medical assistants or nurses.
Plaintiff alleges the following. On April 6, 2007, Plaintiff was attacked by another inmate, and suffered a penetrating wound to his head. Plaintiff was taken to the facility's emergency room, where he was seen by a nurse only. Defendant Akanno was the on-duty physician/surgeon, and was notified by telephone. Defendant Akanno did not personally appear, made no examination of Plaintiff, and instructed the nurse to perform first aid functions only.
Over the next eighteen months, Plaintiff lived in constant, sometimes debilitating pain. The wound was not healing, and Plaintiff experienced syncopal episodes and seizures. Plaintiff was seen thirteen times by medical staff, and at no time was the true significance of the injury recognized. On July 3, 2008, Plaintiff received surgery, and a foreign body of glass-like consistency, measuring 2.5 centimeters by 1 to 1.5 centimeters, was removed.
Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages, as well as provisions for future medical issues arising from this incident. 2
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not 4 mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation 5 omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth 6
Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized 7 measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in 8 doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 9 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 ...