The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN DEFENDANTS RESPONSE DUE WITHIN THIRTY DAYS (Docs. 13, 14)
I. Findings and Recommendations Following Screening of Amended Complaint
Plaintiff Marcus J. Barnhardt ("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 April 6, 2007, in the Sacramento Division of the Eastern District of California.(Doc. 1.) Plaintiff's complaint was dismissed with leave to amend on February 4, 2008. (Doc. 10.) Plaintiff's case was reassigned to the Fresno Division on February 13, 2008. (Doc. 11.) Plaintiff filed his first amended complaint on March 11, 2008. (Doc. 12.).
On December 16, 2008, the court issued an order finding that plaintiff's allegations give rise to cognizable claims for relief under section 1983 against defendants Bryan Hui-Phi, Das Pac, K. Vilasane, and Felix Igbignosa for violating plaintiff's Eighth Amendment rights. However, the court found that plaintiff's allegations do not give rise to any claims for relief against defendants James Tilton, James Yates, and A. Shimmin . The court ordered plaintiff to either file an amended complaint or notify the court that he wishes to proceed only on his Eighth Amendment claims. On December 29, 2008, plaintiff notified the court that he does not wish to amend and wishes to proceed only his Eighth Amendment claims. Based on plaintiff's notice, the instant Findings and Recommendations now issues.
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).
B. Summary of Plaintiff's Amended Complaint
Plaintiff is currently a state prisoner at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the acts he complains of occurred. Plaintiff names as defendants: James E. Tilton, Secretary of CDCR; James Yates, Warden of PVSP; Dr. Felix Igbignosa, CMO of PVSP; Bryan-Hui Phi, K. Vilasane, and Das Pac, doctors at PVSP; and A. Shimmin, CCII Appeals Specialist at PVSP.
Plaintiff alleges the following. Plaintiff is an insulin dependent diabetic. Plaintiff's medical history includes macular proliferative retinopathy, peripheral neuropathy, chronic hypoglycemia and hyperglycemia, and "trigger thumb." The previous chief medical officer had scheduled Plaintiff for surgery for an implanted insulin pump. Defendant Bryan H. Phi told Plaintiff that he would not follow these orders. Plaintiff claims that Dr. Phi refused to provide productive medication to Plaintiff. Defendant Igbignosa, in person and in his responses to Plaintiff's appeals, also refused to follow this order, and sent Plaintiff to several different doctors. This resulted in conflicting orders and mixed-up prescriptions. Igbignosa also prescribes inadequate pain medication, diabetes medication, and fails to order a proper diabetic diet. Defendant Vilasane informed Plaintiff that "They don't do that [insulin pump surgery] here." Vilasane also failed to order a medical transfer to C.M.C. (California Men's Colony) and failed to provide adequate diabetes medication and a diabetic diet. Defendant Das Pac (also listed as "Pac Das" in Plaintiff's amended complaint) told Plaintiff that he would be better off at a medical facility with an insulin pump and a proper diet. Das Pac failed to order or recommend transfer or the insulin pump out of fear of being fired. Defendant A. Shimmin in reviewing Plaintiff's grievance regarding the insulin pump informed Plaintiff that PVSP does not do that, and recommended that Plaintiff see the yard doctor. Plaintiff alleges that defendant Tilton is also responsible for discriminating against diabetic inmates by not providing Plaintiff with a diabetic diet or insulin pump . (Doc. 12, pp. 5-8.)
Plaintiff also alleges that defendants Vilasane, Yates, and Tilton failed to transfer Plaintiff from PVSP despite the presence of valley fever, which diabetic inmates are more likely to contract. (Id., pp. 7-9.) Plaintiff seeks monetary damages and injunctive relief.
1. Federal Rule of Civil Procedure 8(a)
"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. Pro. 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. Pro. 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. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). However, "the liberal pleading standard . . . applies only to a ...