The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION ALLOWING ACTION TO PROCEED ON MEDICAL CLAIMS and DISMISSING CLAIMS UNDER THE ADA, THE RA, AND FOR CONDITIONS OF CONFINEMENT UNDER THE EIGHT AMENDMENT (Doc. 8)
Alfred Brown ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983 and the American's with Disabilities Act. Plaintiff filed his original complaint on November 12, 2004, which the Court screened and dismissed with leave to amend. After receiving a number of extensions, Plaintiff filed his first amended complaint on April 12, 2006.
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, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
C. Plaintiff's Amended Complaint
Plaintiff is currently incarcerated at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California where the instances he complains of occurred. Plaintiff names the following defendants: Dr. David Kyle; Dr. J. Klarich, CMO; E. Benitez, LVN; Appeals Coordinator D. Duvall; T. Domingo, RN; R. Ruff, RN; and C/O R. Mobert.
Plaintiff alleges that on November 11, 2002, he fell off an ADA seat in the ADA cell because there was no locking devise on the seat. Plaintiff was immediately and emergently taken to the C-Facility MTA station. Defendant Domingo RN prepared an emergency medical report and had Plaintiff taken to the Central Treatment Center where Dr. Deering (not a named defendant) placed three stitches over Plaintiff's eye. Plaintiff was returned to his cell.
The next day, the wound began to bleed profusely, and Plaintiff was again taken to the C-Facility clinic where he saw Defendants Domingo RN and Dr. Kyle. Plaintiff states that he requested emergency medical treatment after advising Dr. Kyle of his medical concerns and complaints: severe pain in the eyes, nose and face, possibly fractured nose, difficulty seeing, left side facial numbness. Dr. Kyle declined Plaintiff's request for emergency medical treatment, indicating that it would cost too much. That evening, Plaintiff gave Defendant Domingo RN a request for emergency medical care due to continuing pain.
On November 14, 2002, Plaintiff gave Defendant Ruff RN a request for emergency medical follow-up. On November 18, 2002, Defendant Domingo RN removed Plaintiff's stitches. Thereafter, Plaintiff remained in pain and submitted health care services requests for emergency follow-up which Defendants Domingo and Ruff refused to process.
Plaintiff alleges that, on February 7, 2003, Defendant Dr. Kyle and Defendant Benitez, LVN did not order Plaintiff any medical attention until Plaintiff filed a notice of appeal. Thereafter, Defendant Dr. Kyle prescribed pain medication, ordered x-rays, and authorized an appointment for Plaintiff to see an outside eye doctor, telling Plaintiff that the request was submitted on an urgent basis, when in fact it was not.
The outside eye doctor found an abnormality in the soft tissue of Plaintiff's left eye and stated that it should have been treated at the time of injury. However, because of the time lapse, they would just monitor the eye, prescribe eye drops and glasses, and see him in six months for follow-up.
On December 18, 2002, Defendant Duvall surveyed Plaintiff's cell, indicated that his chair should have a locking device, she did not know why it was absent, ...