Venable v. Stainer

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

          Dennis L. Beck Judge

         Plaintiff 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.

         A. SCREENING 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.

         Section 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 969.

         B. ALLEGATIONS IN FIRST AMENDED COMPLAINT

         Plaintiff is currently incarcerated at KVSP.

         Plaintiff 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.

         Plaintiff 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, at 6.

         The 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.

         Plaintiff 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.

         Based 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 ...