The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION OBJECTION DUE WITHIN THIRTY DAYS (DOC. 19)
Findings and Recommendations Following Screening of Third Amended Complaint
Plaintiff Max Joseph Lacio ("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 this action on March 11, 2004, in the U.S. District Court for the Central District of California. The case was transferred to this Court and received on May 14, 2004. The Court dismissed Plaintiff's complaint with leave to amend for failure to state a claim on October 13, 2005. Plaintiff filed his first amended complaint on December 30, 2005. The Court dismissed the first amended complaint with leave to amend on January 11, 2007. Plaintiff filed his second amended complaint on February 13, 2007. The Court again dismissed Plaintiff's second amended complaint on October 15, 2008. Plaintiff filed his third amended complaint on December 31, 2008.
Plaintiff alleges violations of the First, Eighth, and Fourteenth Amendments as well as state law claims against Richard Early, R. Menkemson, Dr. Cook, Dr. Helland, T. Henschel, V. A. Williams, Mille Briggs, P. Enriquez, Linda Rianda, R.J. Solis, Dr. Friedman, Dr. Luca, Dr. Dayalan, Robert Hernandez, Alan Menhes, Dr. Gianni, Edward Alameida, and the State of California. As set forth below, the Court recommends that Plaintiff's third amended complaint be dismissed with prejudice, for failure to state a claim.
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 alleges that since March 2000 he has received inadequate medical care in violation of the Eighth Amendment while housed at North Kern State Prison ("NKSP-D"), Correctional Training Facility ("CTF-C"), and Richard J. Donovan State Prison ("RJD"). Plaintiff alleges that since March 2000, Defendants were aware that he has serious injuries, including injuries from gunshot wounds and severe pain, but failed to cure or correct his condition. Plaintiff alleges that he suffers from severe, painful muscle spasms that interfere with his ability to perform daily activities, but he was never examined by a doctor or an orthopedic specialist for the injuries to his right hand, arm, and shoulder. Plaintiff alleges that he received x-rays on May 5, 2003, which revealed deformed bones in his right hand, and bullet fragments in three locations in his right shoulder.*fn1 Plaintiff also alleges that another x-ray taken at RJD revealed a 9 mm bullet floating around in his abdomen.*fn2 Plaintiff alleges that Defendants have failed to provide him with medical treatments beyond minimal care, and his injuries have been exacerbated as a result.
Plaintiff alleges that Defendants Alameida, Early, Menkemson, Cook, Helland, Henschel, Williams, Briggs, Enriquez, Rianda, Solis, Friedman, Luca, Dayalan, Hernandez, Menhes, and Gianni failed to provide for a process to gauge the level and effectiveness of the medical staff, training, and policy and procedure, thus leading to inadequate health care.
Plaintiff alleges a violation of the First Amendment, but fails to allege any facts that would give rise to a claim under the First Amendment. The First Amendment of the U.S. Constitution provides that "[c]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. Plaintiff's allegations regarding his health care do ...