United States District Court, E.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT (ECF No.
14.) ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. §
1915(g) ORDER FOR CLERK TO CLOSE CASE
David Ray Mills (“Plaintiff”) is proceeding
pro se and in forma pauperis with this
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that he did not receive prompt medical
attention for his right foot injury, and generally that the
prison is in need of better medical protocols.
filed the Complaint commencing this action on June 17, 2015.
(ECF No. 1.) On September 28, 2016, the Court Plaintiff's
Complaint and found that it failed to state a claim as to any
defendant. (ECF No. 10.) Specifically, the Court found that
Plaintiff's allegations that he did not receive prompt
treatment for his ingrown toe and that his doctor was
negligent did not state an Eighth Amendment constitutional
claim for deliberate indifference for serious medical needs
because Plaintiff did not allege the delay itself resulted in
a serious medical injury. Furthermore, Plaintiff did not
allege that any defendant was aware of his serious medical
condition and intentionally ignored the risk to his health.
Finally, Plaintiff did not allege how any individual or
individuals harmed him personally. Plaintiff was provided
with the applicable legal standards and granted leave to file
an amended complaint. (ECF No. 10.)
filed a First Amended Complaint (“1AC”) on
October 31, 2016 (ECF No. 12). The Court dismissed
Plaintiff's amended complaint with further guidance and
leave to amend on December 16, 2016. (ECF No. 13)
the Court is Plaintiff's Second Amended Complaint, dated
January 19, 2017. (ECF No. 14) Because the Court finds that
Plaintiff's Second Amended Complaint fails to state a
claim under the legal standards, and because further
amendment would be futile, the Court dismisses
Plaintiff's Second Amended Complaint and closes the case.
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).
complaint is required to 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)). While a plaintiff's allegations are taken as
true, courts “are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Plaintiff must set forth
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678. While
factual allegations are accepted as true, legal conclusions
are not. Id.
state a viable claim for relief, Plaintiff must set forth
sufficient factual allegations to state a plausible claim for
relief. Id. 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. Id.
SUMMARY OF SECOND AMENDED COMPLAINT
alleges that his right foot top side was injured during
performing work duties at 7:30 am on January 1, 2014.
Plaintiff alleges that the medical staff neglected him and
treated him with indifference. Staff did not care about this
incident and were not prepared to handle simple operations
due to staff under training. As a result, Plaintiff suffered
severe pain. The staff should be reprimanded for their
Plaintiff had a left foot ingrown toenail. He was supposed to
receive an x-ray on January 29, 2014. Plaintiff finally went
to Delano State Prison for an x-ray, but the technical stated
that it could not x-ray an open would. After delay and
additional forms, Plaintiff's left big toenail was
removed. However, he failed to receive appropriate medical
attention for his right toenail and was in unbearable pain as
also alleged that he required medical care on another
occasion on March 10, 2015. In this incident as well, medical
staff was not prepared for inmate capacity. RN Daniels did
not care about proper procedures. Dr. Le Young was
overwhelmed and part time at the facility.
ANALYSIS OF PLAINTIFF'S CLAIMS