ORDER REGARDING FINDINGS AND RECOMMENDATIONS AND DETERMINING THE CLAIMS ON WHICH THIS ACTION WILL PROCEED

(ECF No. 154)

ANTHONY W. ISHII, Senior District Judge.

Plaintiff Michael D. Harrison ("Plaintiff") is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The operative complaint was filed on October 9, 2012, and titled the eighth amended complaint ("complaint").

On May 5, 2013, the Magistrate Judge filed Findings and Recommendations, recommending this action proceed on some of the complaint's claims and defendants but that other claims and defendants be dismissed. (ECF No. 154.) Plaintiff has filed objections. (ECF No. 156.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations allowing this action to proceed as to certain Defendants is supported by the record and by proper analysis. However, in light of the objections and this Court's review of the pending complaint, the Court adds the additional analysis set forth below.

The Magistrate Judge recommended that the Court dismiss the claim against Defendant Roth concerning his failure to obtain medical help when Plaintiff's arm was broken because Defendant Roth asked for help. In the objections, Plaintiff contends that the complaint's allegations state that he asked Defendant Roth for help and Defendant Roth did nothing. The Court has reviewed the portions of the complaint concerning Defendant Roth. After reading the relevant sentences, the Court finds that Plaintiff's allegations against Defendant Roth, as written, could be read two different ways. Given the deference the Court must give to Plaintiff at this stage of the pleadings, the Court will construe these sentences as Plaintiff explains them in the objections — Plaintiff asked Defendant Roth for medical help and showed him his broken arm, but Defendant Roth did not do anything. As such, this action will proceed against Defendant Roth.

A far closer question is whether Plaintiff's allegations concerning those that knew about Plaintiff's infection and were asked for help, but did nothing, states a claim. The complaint's allegations are not extraordinarily specific. Plaintiff lists 17 guards and other staff that he had contact with between June 6, 2007 and September 1, 2007. The complaint then states that each of these Defendants saw that Plaintiff's arm was swollen, "bleeding and leaking out puss." The complaint states that Plaintiff asked each of these 17 defendants for medical help and they did nothing. Rule 8(a) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Under Rule 8, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. This plausibility standard is not a probability requirement, but does ask for more than mere possibility; if a complaint pleads facts "merely consistent with" a theory of liability, it falls short of "the line between possibility and plausibility." Id.

The Court can see ways in which Plaintiff could have been more specific in the complaint; Such as alleging the dates on which Plaintiff had contact with each of these 17 defendants, stating exactly what he said to each of the 17 defendants, and how well they could view Plaintiff's arm given the circumstances. However, the Court respectfully disagrees with the Magistrate Judge that Plaintiff's allegations are not sufficient under Rule 8. The complaint alleges the names of 17 defendants that were at the window of his cell between June 6, 2007 and September 1, 2007. The complaint alleges that he: (1) Told these defendants that his arm was hurting and bleeding and leaking out puss, and (2) Asked these defendants to take him to the hospital for help. The complaint alleges Plaintiff made these statements and requests to the defendants repeatedly. The complaint also alleges these 17 defendants could see Plaintiff's arm, including the swelling, bleeding, and puss. For Eighth Amendment claims arising out of medical care in prison, a plaintiff "must show (1) a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain," and (2) that "the defendant's response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). Deliberate indifference is shown by "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm caused by the indifference." Id. "Under this standard, the prison official must not only `be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person `must also draw the inference." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). The Court finds Plaintiff's requests for help, along with the obviousness of Plaintiff's serious medical condition, as described in the complaint, sufficiently states a claim for deliberate indifference by the 17 defendants.

In the objections, Plaintiff appears to request that the Court allow Plaintiff more time to find the names of others who he may have also asked for help so that he can file yet another amended complaint. This action concerns events from 2007. The action has been pending in this Court since 2008. The pending complaint is entitled "Eighth Amendment Complaint", and appears to be at least Plaintiff's fifth or sixth attempt to file some kind of amended complaint or pleading. It is now time for this action to proceed. As such, no further leave to amend will be granted.

Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.