Quiroga v. Aguilara

          FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF NO. 18) FOURTEEN (14) DAY OBJECTION DEADLINE

          MICHAEL J. SENG UNITED STATES 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. His complaint and first amended complaint were dismissed for failure to state a claim, but he was given leave to amend. (ECF Nos. 14, 17.) His second amended complaint 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 pre-trial detention at the Lerdo PreTrial Facility. He names as defendants: (1) Nurse Aguilara, “R.N., L.V.N. or N.A.”; and (2) L. Porter of the Kern County Sheriff's Office.

         Plaintiff's allegations may be summarized essentially as follows:

         Plaintiff has chronic pain from pins and a plate attached to his left radius. Defendant Aguilara failed to treat Plaintiff and refused to review his medical file. She sent him back to his unit without Tylenol or pain management.

         Plaintiff also complains, in effect, that his treatment was purposely delayed. According to Plaintiff, Defendant Porter recorded that Plaintiff had refused sick call when, in fact, he had not. This alleged refusal delayed Plaintiff's treatment by thirty days.

         Plaintiff alleges this conduct violated his due process right to adequate medical care. He wishes to receive “proper medical treatment, proper chronic pain medication, surgery to remove 9 pins 6 ...