The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS
Plaintiff Adam B. Galvan ("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 Kern Valley State Prison in Delano, California. Plaintiff is suing under section 1983 for the violation of his rights under the Cruel and Unusual Punishments Clause of the Eighth Amendment. Plaintiff names A. Shittu (doctor), Robert Ayers (warden), and A. Hedgpath (warden) as defendants. For the reasons set forth below, it is recommended that Plaintiff's claims against Defendants Ayers and Hedgpath be dismissed, and this action proceed against Defendant Shittu for deliberate indifference to Plaintiff's medical needs.
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)).
Plaintiff filed the Original Complaint in this action on November 20, 2008. (Doc. #1.) The court screened Plaintiff's Original Complaint on March 16, 2009. (Doc. #10.) Plaintiff was ordered to either file a First Amended Complaint, or notify the court of his willingness to proceed only on the claims found to be cognizable by the court in his Original Complaint. In doing so, the Court found that Plaintiff stated a cognizable claim against Defendant Shittu for deliberate indifference to his medical needs, but Plaintiff's claims against Defendants Ayers and Hedgpath were not cognizable. Plaintiff filed his First Amended Complaint on May 22, 2009. (Doc. #17.) This action proceeds on Plaintiff's First Amended Complaint.
Plaintiff alleges that defendants were deliberately indifferent to his medical needs. Plaintiff suffers from the after-effects of a gun shot wound he experienced years ago.
Plaintiff has little to no use of his right hand and suffers brain damage from the fragments of the bullet that were left in his brain. Plaintiff also experiences severe pain.
Plaintiff states that "my brain damage and physical disability were completely overlooked as well as my very important need for medical treatment". (Compl. 2.) Plaintiff was seen by Defendant Shittu and requested to be placed on "ADA status" and transferred to a medical institution where he could receive physical therapy for his hand. Plaintiff cannot use his hand due to his injury. Plaintiff alleges that he needs two hours of physical therapy per day. Defendant Shittu refused to grant Plaintiff "ADA status" and "really didn't care about my [hand injury] or the fact that I must receive therapy." (Compl. 3.) Plaintiff alleges that Defendant Ayers "was responsible for transferring me to a medical institution" and that "he not only did not transfer me, he put m[y] life in danger by placing me ...