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Ingram v. Brewer

February 23, 2009

JAMES INGRAM, PLAINTIFF,
v.
BREWER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THIRD AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED

(Doc. 19)

OBJECTIONS DUE WITHIN 30 DAYS

I. Findings

Plaintiff James Ingram ("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 February 1, 2007. (Doc. 1.) On May 17, 2007, the Court dismissed Plaintiff's complain with leave to amend. (Doc. 10.) On June 26, 2007, Plaintiff filed his first amended complaint. (Doc. 12.) On February 4, 2008, the Court dismissed Plaintiff's first amended complaint with leave to amend. (Doc. 14.) On April 9, 2008, Plaintiff filed an "Amended Complaint," which the Court treated as a second amended complaint. (Doc. 17.) On January 12, 2009, the Court dismissed Plaintiff's second amended complaint with leave to amend. (Doc. 18.) On February 17, 2009, Plaintiff filed his third amended complaint. (Doc. 19.) Plaintiff's third amended complaint is presently before the Court for screening.

A. Screening Standard

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 apply 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, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

B. Summary of Plaintiff's Second Amended Complaint

Plaintiff is currently a state prisoner at California Rehabilitation Center for Males in Norco, California. Plaintiff was formerly imprisoned at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the acts he complains of occurred. Plaintiff names as defendants: MTA Brewer and Does 1 through 4. (Doc. 19, p. 3.)

Plaintiff alleges the following. Defendant Brewer injected Plaintiff with the wrong medication despite Plaintiff tell him. Plaintiff became sick and also contracted valley fever.

Plaintiff seeks monetary damages and injunctive relief.

C. Discussion

1. Deliberate Indifference to A Serious ...


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