The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER DISMISSING COMPLAINT IN PART PURSUANT TO 28 U.S.C. § 1915
On April 14, 2008, pro se Plaintiff Jesse E. Bejaran, Jr., a prisoner incarcerated at California State Prison, located in Corcoran, California, filed a prisoner civil rights complaint and an application to proceed in forma pauperis. (Doc. ## 1 & 2.) The Court granted the in forma pauperis application on January 8, 2009. (Doc. # 6.) In his complaint, Bejaran alleges that employees of the Deuel Vocational Institute in Tracy, California ("DVI Tracy") were deliberately indifferent to his serious medical needs. Plaintiff brings these claims pursuant to 42 U.S.C. § 1983. Although some allegations state cognizable claims, several claims are deficient and, therefore, are DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), with leave granted to amend.
In his most recent amended complaint, Plaintiff brings a § 1983 claim alleging DVI Tracy employees Correctional Officer ("C/O") Mayes, C/O Huesel, C/O Braga, C/O Loiler, C/O Franco, C/O Cardoza, C/O Mendoza, C/O Rodriguez, Physician Assistant ("P/A") Street, Sergeant ("Sgt.") Hughes, Lieutenant ("Lt.") Ruiz, and Warden Moore (collectively, "Defendants") acted with deliberate indifference to his medical needs, health, and safety. Plaintiff alleges that Defendants acted with deliberate indifference when they: (1) denied him a cane; (2) denied Plaintiff housing on the first tier; (3) denied Plaintiff medical treatment and medication; and (4) ignored the prison's "hands on policy." Additionally, Plaintiff alleges that Defendants violated the American with Disabilities Act (the "ADA").
On October 12, 2007, Plaintiff was determined to be an American with Disabilities for existing leg injuries. As of October 25, 2007, doctors at DVI Tracy also established that Plaintiff was disabled. Nevertheless, Plaintiff was ordered to move to the second tier of the prison despite the fact that most disabled prisoners were housed on the first tier. Although Plaintiff explained to C/O Mayes and C/O Huesel that he was disabled, they proceeded to move him to the second tier per the orders of a Sergeant.
Plaintiff was required to walk up the stairs with all his belongings to his new lodging on the second tier. Some staff stood by as Plaintiff walked his belongings up the stairs, although no one physically escorted him.
On November 13, 2007, Dr. Oandasan ordered that Plaintiff be given a cane and for Plaintiff to be housed on the lower tier as is customary for prisoners with disabilities. On November 16, 2007, Plaintiff asked P/A Street for a cane. On that same day, P/A Street denied his request and told Plaintiff he was not disabled.
On November 19, 2007, C/O Braga put mechanical restraints on Plaintiff and ordered him to go up the stairs with no escort. Following C/O Braga's orders, Plaintiff proceeded up the stairs when his right leg went out and Plaintiff fell down seven steps. When C/O Braga was informed of Plaintiff's fall, she went to check on him. C/O Braga knew about Plaintiff's injuries because she escorted Plaintiff in the past. Because Plaintiff could not feel his legs, C/O Braga called a nurse over to check on him. The nurse determined that a gurney would be needed to transport Plaintiff to the infirmary for further examination. Plaintiff remained without medical treatment and in his restraints for approximately four hours after his fall under the supervision of C/O Cardoza. C/O Franco later relieved C/O Cardoza.
C/O Franco eventually transported Plaintiff in a wheelchair against Plaintiff's wishes, causing him severe back pain. While in the wheelchair, Plaintiff asked C/O Franco for a cane and requested to be moved to the first tier. C/O Franco asked C/O Loiler if Plaintiff could have a cane and be moved, and C/O Loiler denied both of Plaintiff's request. C/O Franco returned Plaintiff to his cell on the second tier. Due to Plaintiff's fall, he placed sick call forms to see doctors for his injuries. Although he had appointments on November 27, 2007, December 6, 2007, December 9, 2007, and December 11, 2007, each time he could not receive treatment because his file was unavailable.
On November 20, 2007, Dr. Oandasan told Plaintiff he signed papers authorizing him to move to the first tier and to be given a cane. On that same day, Plaintiff asked C/O Castro and Sgt. Hughes for a cane. Sgt. Hughes told Plaintiff that he would look into the matter.
On November 21, 2007, Plaintiff asked Lt. Ruiz for a cane. In the same conversation, Lt. Ruiz asked Plaintiff why he was not housed on the first tier like the other disabled prisoners. Plaintiff said he did not know and Lt. Ruiz said she would look into the matter. Plaintiff did not receive a cane until December 22, 2007.
On November 23, 2007, Dr. Nguyen examined Plaintiff for blood in his rectum. Dr. Nguyen determined that Plaintiff needed to be transferred back to the first tier. Plaintiff moved that same day.
On December 12, 2007, Plaintiff visited P/A Street about his lower back pain. P/A Street refused to examine Plaintiff or give him medication. Again on December 27, 2007, P/A Street refused to examine Plaintiff's lower back or provide him with medication for the pain. Consequently, Plaintiff filed an appeal against P/A Street. On December 29, 2007, Dr. Duggar gave Plaintiff his medication that P/A Street previously denied him. On January 4, 2008, Plaintiff sent a letter to Warden Moore explaining his medical needs.
On January 8, 2008, Plaintiff's back went out at approximately 9 a.m. C/O Mendoza and C/O Mayes refused to take Plaintiff to the infirmary because there was no gurney available. Plaintiff's cell mate filled out an inmate request form to have Plaintiff taken to the infirmary. Plaintiff was taken to the infirmary at 4:30 p.m. and was administered medication at 7:30 p.m.
On April 14, 2008, Plaintiff filed a complaint. (Doc. # 1.) On May 8, 2008, Magistrate Judge Gregory G. Hollows granted Plaintiff's motion to proceed in forma pauperis and denied Plaintiff's motion for appointment of counsel (together the "IFP Order"). (Doc. # 6.) In the IFP Order, the Court dismissed all of Plaintiff's claims except those against Mayes, Huesel, Street, Loiler, Hughes, Ruiz, Franklin, Cardoza, and Mendoza. (IFP Order at 12.) In light of Plaintiff's pro se status, the Court granted Plaintiff leave to amend. (Id. at 11.) By May 16, 2008, Plaintiff was transferred to California State Prison at Corcoran, his present facility of incarceration. (Doc. # 8.)
On May 23, 2008, Plaintiff amended his complaint and once again filed a motion requesting appointment of counsel. (Doc. ## 11 and 9, respectively.) On May 30, 2008, Plaintiff filed a second amended complaint and a motion for appointment of counsel (together, the "Second Amended Complaint"). (Doc. ## 15 and 14, respectively.) On July 23, 2008, Magistrate Judge Gregory G. Hollows dismissed without prejudice Plaintiff's Second Amended Complaint because Plaintiff did not clearly identify Defendants and denied Plaintiff's motion for appointment of counsel ("July 23, 2008 Order"). (July 23, 2008 Order at 1.)
On August 18, 2008, Plaintiff again amended his complaint and made a motion for appointment of counsel (together, the "Third Amended Complaint"). (Doc. ## 21 and 22, respectively.) On October 3, 2008, Magistrate Judge Gregory G. Hollows dismissed without prejudice Plaintiff's Third Amended Complaint because Plaintiff sought injunctive and declaratory relief and denied Plaintiff's motion for appointment of counsel ("October 3, 2008 Order"). (October 3, 2008 Order at 1.) Plaintiff's claims for injunctive relief were deemed moot because Plaintiff had been transferred from the DVI Tracy to the California State Prison at Corcoran. (Id. at 2.) On October 22, 2008, Plaintiff amended his complaint and made a motion for appointment of counsel (together, the "Fourth Amended Complaint"). (Doc. ## 28 and 29, respectively.) On March 2, 2009, Plaintiff made an additional request for appointment of counsel. (Doc. # 34.)
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if a plaintiff raises 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). If the court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
The court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide ...