The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATION THAT FIRST AMENDED COMPLAINT BE DISMISSED WITH PREJUDICE FOR FAILURE INABILITY TO STATE A CLAIM [Doc. 10]
Relious Carter ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on June 13, 2005, which, on October 2, 2006, was dismissed with leave to amend. (Docs. 1 & 9.) Subsequently, Plaintiff filed his first amended complaint on November 2, 2006. (Doc. 10.)
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 a state prisoner, currently incarcerated at California Substance Abuse Treatment Facility and State Prison ("CSATF-SP"), in Corcoran California -- where the acts he complains of allegedly occurred.
Plaintiff names as defendants: Director Jean Woodford; Warden Derral Adams; Health Services Administrator K. Allison; Chief Medical Officer Dr. D. Deering; Appeals Analyst G. Miller; Dr. D. Kyle; and Dr. D. Dang.
Plaintiff alleges that: on September 13, 2001, he was transferred from High Desert State Prison to CSTAF-SP and sought medical care shortly after his arrival; he was examined by Dr. Dang on five dates between November 30, 2001 and June 18, 2002; at each visit, Plaintiff requested diagnostic blood work and complained of back pain, ankle pain, itching all over his body, and a general "disease of the body;" and Dr. Dang responded at each visit by prescribing treatment and medications for pain and allergies, but refusing to order diagnostic blood work; on December 10, 2002, Plaintiff was transferred from Corcoran SHU to CSATF; Plaintiff submitted health care service requests on December 10, 2002, January 6, 2003, and January 8, 2003; on January 13, 2003, Dr. Kyle "visited" Plaintiff; Dr. Kyle was hostile towards Plaintiff, but Plaintiff was able to advise Dr. Kyle that his right big toe was painful, at time his right foot would swell so as to necessitate assistance when ambulating, his vision was blurry, and that he had a skin condition; Plaintiff requested blood work and a cane/crutches; Dr. Kyle denied the requested blood work and cane/crutches, but noted Plaintiff's dermatitis; during the inmate appeals process, Plaintiff became depressed, without the strength or will to be active on a daily basis; on June 17, 2003, Plaintiff requested medical attention, in response to which Dr. Kyle did not visit Plaintiff; on June 18, 2003 Plaintiff again requested medical attention and was taken by litter to nurse T. Domingo (not a named defendant) who gave Plaintiff a shot and a source drink; Plaintiff was returned to his cell; on June 19, 2003, Plaintiff requested, and was taken to the medical facility where he was seen by Dr. Kyle who determined Plaintiff needed a higher level of care and had him transported to the correctional treatment center emergency room; once there, he was examined by Dr. Snow (not a named defendant) who had Plaintiff transferred to San Joaquin Community Hospital after determining Plaintiff was possibly suffering from diabetic ketoacidosis; and Plaintiff filed numerous appeals regarding his medical issues which were investigated, processed, and decided by Dr. Kyle, Dr. Deering, K. Allison, and G. Miller. Plaintiff seeks monetary damages.
1. Eighth Amendment - Medical Care
Plaintiff alleges that Dr. Kyle and Dr. Dang violated his constitutional rights via their involvement in his medical care ...