United States District Court, E.D. California
ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 (Doc. 7.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE-STRIKES" PROVISION SET FORTH IN 28 U.S.C. § 1915(g)
ORDER FOR CLERK TO CLOSE THIS CASE
GARY S. AUSTIN, Magistrate Judge.
Robert Varela ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this case on January 31, 2013. (Doc. 1.)
On February 14, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action 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).
The court screened Plaintiff's Complaint and issued an order on October 22, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 6.) On November 12, 2013, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 7.)
II. SCREENING REQUIREMENT
The in forma pauperis statutes provides that "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, 1949 (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.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at Wasco State Prison in Wasco, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR). The events at issue allegedly occurred at the Fresno County Jail in Fresno, California, when Plaintiff was in custody there. Plaintiff names as defendants the Fresno County Jail Medical Department, Dr. Rubalcava, Dr. Penny, and the Medical Staff (collectively, "Defendants"). Plaintiff's allegations follow, in their entirety:
Due to lack of medical care and attention I suffered with pain for chronic medical problems I had prior to being incarcerated. Upon my detention I obtained prescription as well as medical records from my personal doctor by way of fax and personally delivered [them] to Jail Medical Department. I suffered from pain, swelling, and bone joint inflammation for over a period of five to six months. I was never seen by a Jail facility doctor or even admitted to Hospital or facility infirmary for any evaluation. Suffered muscle tension, resulting in a knot developing on my right top side of right knee with lack of proper mobility.
(First Amended Complaint at 3 ¶IV). Plaintiff requests monetary damages and injunctive relief.
IV. PLAINTIFF'S CLAIMS
The Civil Rights Act under which this action was ...