United States District Court, E.D. California
DUSTY W. LEWIS, Plaintiff,
MARGARET MIMS, et al., Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 8)
MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction. No other parties have appeared in the action.
The Court screened Plaintiff's complaint (ECF No. 1) and dismissed it for failure to state a claim, but gave leave to amend. (ECF No. 7.) Plaintiff has since filed an amended complaint (ECF No. 8), which is before the Court for screening.
I. 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 "frivolous, malicious, " or 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).
II. PLEADING STANDARD
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor , 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins , 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty. , 811 F.2d 1243, 1245 (9th Cir. 1987).
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 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 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 . Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.
III. PLAINTIFF'S ALLEGATIONS
Plaintiff is incarcerated at Wasco State Prison, but complains of acts that occurred during his pretrial detention at the Fresno County Jail. Plaintiff names as defendants: 1) Margaret Mims, Fresno County Sheriff, 2) Dr. Than Aw, 3) Dr. Ramos, 4) Nurse O. Dionisio, and 5) Dr. Badu.
Plaintiff's allegations relate to Defendants' treatment of his right knee injury, and may be summarized essentially as follows:
Plaintiff has a history of surgically repaired ankles and, on September 20, 2012, sustained an injury which was later diagnosed as a broken right ankle and torn right MCL and patella.
On September 21, 2012, Plaintiff saw Defendant Aw, who gave Plaintiff a splint and ordered him to walk back to his housing unit. Plaintiff was not given crutches or referred to the hospital.
On September 27, 2012, a sergeant observed swelling and bruising at Plaintiff's ankle injury and ordered Plaintiff transported to CRMC Hospital. There, x-rays caused Dr. John Orona to diagnose a fractured right talus and a right knee soft tissue injury. Dr. Orona ordered follow-up for Plaintiff's injuries at CRMC's orthopedic clinic, crutches, and pain medication.
On October 9, 2012, Dr. Aw referred Plaintiff for CRMC orthopedic clinic follow-up for his right ankle injury, but not for his right knee injury.
On October 18, 2012, P.A. Arturo Avila saw Plaintiff at the CRMC orthopedic clinic, diagnosed a right knee dislocation, and ordered an MRI of the knee. He also ordered Plaintiff to return the following day, ordered crutches and/or a walker, and ordered "no weight bearing."
On November 1, 2012, Plaintiff saw orthopedist Dr. Daniel Baxter, who ordered an MRI of Plaintiff's right knee, crutches, and no weight bearing.
On November 15, 2012, Defendant Aw discontinued Plaintiff's crutches, forcing Plaintiff to walk and ...