The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE
RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Alvin R. Ross ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and California law. Plaintiff filed this action on March 3, 2008.
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).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, while the burden on the pleader is not great, the factual allegations must still be sufficient to state a plausible claim. Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1122 (9th Cir. 2008).
Plaintiff is currently housed at California State Prison-Corcoran, where the events at issue in this action are occurring. Plaintiff is seeking monetary damages and injunctive relief based on the violation of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In addition, Plaintiff alleges negligence in violation of California tort law. Plaintiff alleges that Williams McGuinness, Chief Medical Officer; Doctors Smith, an orthopedic surgeon, and Julian Kim; and J. Tercero, Appeals Analyst, are responsible for the violation of his rights.
Sometime between 1995 and 1996, Plaintiff injured his shoulder. He began complaining about shoulder pain, and numbness in his left arm and hand, and Dr. Smith performed surgery to remove a wrist cyst on August 18, 2005. Plaintiff complained to Dr. Smith of continued pain and numbness during a check-up and was told they should subside but to make another appointment if not. Plaintiff also notified Dr. Smith that his collarbone appeared to be dislocated and was protruding from his chest area.
The pain continued to worsen to the point that it prevented Plaintiff from sleeping at times, and Plaintiff began to complain to medical staff. X-rays were performed, but were not determinative.
On October 5, 2005, Dr. Smith ordered nerve testing for the numbness, and stated he was unsure what could be done about Plaintiff's collarbone, as the state was not contracted to do that kind of operation. Dr. Smith reordered the nerve testing on November 16, 2005. The nerve testing was conducted at an outside hospital but the doctor was unable to find any damage and suggested an MRI might be better suited to find the problem.
Plaintiff encountered trouble getting the MRI scheduled because staff incorrectly believed he was not a candidate due to the pin in his knee. Plaintiff was given Tylenol and advised to ...