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Thomas v. California Dep't of Corrections

May 6, 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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISS AL OF PLAINTIFF'S COMPLAINT

(Doc. 17)

Findings and Recommendations Following Screening of Complaint

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 is incarcerated at Avenal State Prison in Avenal, California ("ASP"). Plaintiff is suing under section 1983 for the violation of his rights under the Eighth Amendment. Plaintiff names Salazar (doctor), Kushner (doctor), Ortiz (doctor), Cain (doctor), Smith (doctor) and Morris (registered nurse) as defendants. For the reasons set forth below, the court recommends that Plaintiff's complaint be dismissed.

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

This action was transferred to this court from the District Court for the Central District of California on February 1, 2006. (Doc. #1.) Plaintiff filed a motion to amend his complaint on April 27, 2006. (Doc. #4.) Plaintiff's motion was granted on June 21, 2006 and Plaintiff filed his First Amended Complaint on July 13, 2006. (Doc. #7, 8.) The court issued a screening order on January 12, 2009 dismissing Plaintiff's complaint for failure to state a claim, with leave to file an amended complaint. (Doc. #12.) Plaintiff filed a response on February 11, 2009. (Doc. #13.) Plaintiff correctly pointed out that the court had erroneously screened the original complaint, rather than the First Amended Complaint in its January 12, 2009 screening order. The court vacated its prior screening order and screened Plaintiff's First Amended Complaint on March 16, 2009. (Doc. #14.) The court found that Plaintiff's First Amended Complaint did not state any cognizable claims and gave Plaintiff the opportunity to amend his claim. Plaintiff filed his Second Amended Complaint on April 20, 2009. (Doc. #17.) This action proceeds on Plaintiff's Second Amended Complaint.

B. Factual Background

Plaintiff alleges that the medical treatment he received while at ASP was so deficient that it amounted to cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. On January 15, 2004, Plaintiff was seen by Defendant Salazar. Plaintiff complained about pain in his hip and right leg. Defendant Salazar prescribed Motrin for Plaintiff and told Plaintiff to come back if the pain persisted. Plaintiff returned complaining that he was still in pain. Defendant Salazar felt Plaintiff's leg and hip but took no further action.

On September 11, 2004, Plaintiff was seen by Defendant Kushner. Plaintiff complained that he continued to experience pain in his hip and right leg. Defendant Kushner prescribed Motrin for Plaintiff and told Plaintiff to return if the pain persisted. Plaintiff returned and continued to complain about the pain. Defendant Kushner felt Plaintiff's hip and leg but took no further action.

On December 11, 2004, Plaintiff was seen by Defendant Ortiz. Plaintiff complained that he continued to experience pain in his right leg and hip. Plaintiff specifically requested an x-ray or MRI. Defendant Ortiz told Plaintiff that an x-ray or MRI would not be medically useful. Defendant Ortiz advised ...


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