United States District Court, E.D. California
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED
DENNIS L. BECK, Magistrate Judge.
Plaintiff Eric Collins ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on July 30, 2012. Pursuant to Court order, he filed a First Amended Complaint ("FAC") on May 16, 2013. The Court dismissed the FAC with leave to amend on January 2, 2014, and Plaintiff filed his Second Amended Complaint ("SAC") on February 7, 2014. He names Dr. Duenas, R.N. Shortnacy, Dr. Paja, Dr. Igbinosa, Dr. Ahmed, Dr. Grey, R.N. LimJavate and Dr. Rorhdanz as Defendants.
A. LEGAL STANDARD
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. 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 , 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Id . (quoting Twombly , 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
To state a claim, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal , 129 S.Ct. at 1949-50; 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 , 129 S.Ct. at 1949-50; Moss , 572 F.3d at 969.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at the California Institution for Men in Chino, California. The events complaint of occurred while he was housed at Pleasant Valley State Prison ("PVSP") and the Correctional Training Facility in Soledad, California ("CTF").
Plaintiff alleges that he saw Defendant Duenas, his primary care provider, at PVSP concerning pain his left hand. She referred him to an orthopedic specialist, Dr. Lewis. Dr. Lewis saw Plaintiff first via "telemed" while Defendant Shortnacy assisted. Dr. Lewis ultimately told Plaintiff that he would need surgery for carpal tunnel syndrome and a broken bone. Dr. Lewis prescribed a bone stimulator to heal the broken bone.
Plaintiff again saw Dr. Lewis via telemed, with Defendant Shortnacy assisting. Defendant Shortnacy was told to acquire a bone stimulator.
After a ninety-day delay, Plaintiff received his bone stimulator for sixty days of treatment.
Plaintiff saw Dr. Lewis again, and he determined that the bone stimulator was working. Dr. Lewis ordered Plaintiff to use the treatment for another ninety days.
During the prescribed treatment, Plaintiff was transferred to CTF. Defendant Shortnacy took the bone stimulator a few days prior to Plaintiff's transfer, despite Dr. Lewis' orders for Plaintiff to use it.
Once Plaintiff arrived at CTF, he asked about the bone stimulator. Despite doctor's orders, the bone stimulator was denied.
Plaintiff began complaining about his hand and the "process" started all over again.
After about six months, Plaintiff saw a hand specialist, Dr. Zewert. Dr. Zewert wrote a report indicating that the bone was ...