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Thomas v. California Dep't of Corrections

March 16, 2009

EDWARD LEE THOMAS, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER VACATING PREVIOUS SCREENING ORDER AND DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO FILE SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS

(Doc. 8)

Plaintiff Edward Lee Thomas ("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 is in the custody of the California Department of Corrections and Rehabilitation and currently incarcerated at Avenal State Prison in Avenal, California ("Avenal"). Plaintiff is bringing suit under section 1983 for the deprivation of his rights under the Eighth Amendment of the U.S. Constitution. Plaintiff names Doctor Salazar, Doctor Kushner, Doctor Ortiz, Doctor Cain, Doctor Smith, and Registered Nurse Morris as defendants.

I. Screening Requirement

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, "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)).

II. Background

A. Procedural Background

Plaintiff filed the original complaint in this action on November 29, 2005 in the Central District of California. The case was transferred to this court on February 1, 2006. (Doc. #1.) Plaintiff requested leave to amend his complaint on April 26, 2006. (Doc. #6.) Plaintiff's First Amended Complaint was filed on July 13, 2006. (Doc. #8.) This court issued a screening order dismissing Plaintiff's complaint for failure to state a claim on January 12, 2009. (Doc. #12.) On February 11, 2009, Plaintiff filed an opposition to the court's January 12 order, expressing confusion because the screening order did not appear to address Plaintiff's first amended complaint. (Doc. #13.) On review, it appears the court erroneously based the January 12 screening order on Plaintiff's original complaint, and not on Plaintiff's first amended complaint as it should have. Therefore, the court VACATES its January 12, 2009 screening order and replaces it with this one.

B. Factual Background

On January 15, 2004, Plaintiff saw Defendant Doctor Salazar and informed him that he was experiencing pain in his hip and right leg. Defendant Salazar prescribed Motrin for Plaintiff's pain and told him to come back if he continued to feel pain. Plaintiff continued to report to Defendant Salazar that he was still in pain, but Defendant Salazar did not provide further treatment and only felt Plaintiff's leg and hip to examine it.

On September 11, 2004, Plaintiff saw Defendant Doctor Kushner and informed him that his hip and right leg was still in pain. Defendant Kushner prescribed Motrin and also told Plaintiff to come back if he continued to feel pain. Plaintiff continued to report his pain to Defendant Kushner but Defendant Kushner did not provide additional treatment and only felt Plaintiff's leg and hip to examine it.

On December 11, 2004, Plaintiff saw Defendant Doctor Ortiz and informed him that his hip and right leg was still in pain. Plaintiff requested an x-ray or MRI. Defendant Ortiz told Plaintiff that an x-ray would not be medically useful and told ...


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