United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
L. Beck Judge
Elvis Venable ("Plaintiff"), a state prisoner
proceeding pro se and in forma pauperis, filed this civil
rights action on April 26, 2016. Plaintiff names M.D.
Stainer, Kern Valley State Prison ("KVSP") Warden
Biter, Kern Medical Center Dr. Busch, KVSP CEO M. Hutchinson
and KVSP Dr. Woods as Defendants.
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. §
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.
1983 provides a cause of action for the violation of
Plaintiff's constitutional or other federal rights by
persons acting under color of state law. Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long
v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006); Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). Plaintiff's allegations must link the actions
or omissions of each named defendant to a violation of his
rights; there is no respondeat superior liability under
section 1983. Iqbal, 556 U.S. at 676-77; Simmons
v. Navajo County, Ariz., 609 F.3d 1011, 1020-21
(9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d
1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
Plaintiff must present factual allegations sufficient to
state a plausible claim for relief. Iqbal, 556 U.S.
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.
Iqbal, 556 U.S. at 678; Moss, 572 F.3d at
ALLEGATIONS IN FIRST AMENDED COMPLAINT
is currently incarcerated at KVSP.
alleges that on March 5, 2014, he was assaulted by two
inmates and suffered a broken jaw. He was admitted to Kern
Medical Center for an intermaxillary fixation. After the
period of recovery suggested by Defendant Busch, Defendant
Busch performed a procedure to remove the fixation wiring on
April 30, 2014. During the procedure, Defendant Busch broke
several of Plaintiff's teeth.
brought the issue to the attention of KVSP medical staff.
Defendant Woods attempted to repair the broken teeth, but
placed fillings that were not completely on Plaintiff's
teeth. This led to debris in Plaintiff's mouth and an
increase in severe pain from the jaw fracture. It was later
discovered that the fracture was not fully healed when the
wiring was removed. The "sub-par" treatment caused
the fillings to have to be redone in thirty days, which
resulted in an increase in Plaintiff's pain. ECF No. 1,
dental surgeon at KVSP noted the "unattended
fracture" and indicated that Defendant Busch should not
have removed the wiring. ECF No. 1, at 4. After Plaintiff
told Defendant Busch of the diagnosis made by the KVSP
specialist, Defendant Busch said, "If KVSP staff believe
your jaw is still broken, they should fix it
themselves." ECF No. 1, at 4.
used the prison grievance system to resolve his jaw issue.
However, during the process, CDCR suggested that because
Plaintiff missed an appointment when he was ill, he caused
the deficiencies in the fixation process. Plaintiff contends
that he was not responsible for the removal of the fixation
wiring, or the fact that one area of his jaw was not fully
healed when the wiring was removed.
on these facts, Plaintiff alleges a violation of the Eighth
Amendment. He contends that Defendants failed to perform a
required procedure that was needed to correct the fracture of
which they were aware. Defendants were aware of the need to
have two fractures repaired, yet only one of the necessary
repairs was made. He contends that when Defendants discovered
that one of the repairs was not ...