The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983
RESPONSE DUE WITHIN 30 DAYS
Findings and Recommendations Following Screening of Complaint
Plaintiff Carlos Martinez ("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 was incarcerated at Avenal State Prison, in Avenal, California ("ASP") at the time the events in his complaint took place. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiff names James Tilton (secretary of corrections), Maria Loya (staff services analyst, medical appeals), I. Mathos (medical provider), and E. Greenman (chief medical officer) as defendants. For the reasons set forth below, the Court finds that Plaintiff fails to state any cognizable claims under section 1983 and recommends that Plaintiff's complaint be dismissed without leave to amend.
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 January 5, 2009. (Doc. #1.) Plaintiff's Original Complaint was screened on June 16, 2009. (Doc. #9.) Plaintiff's Original Complaint was dismissed for failure to state a claim, and Plaintiff was given the opportunity to amend his complaint within 30 days. Plaintiff filed his First Amended Complaint on July 10, 2009. (Doc. #10.) This action proceeds on Plaintiff's First Amended Complaint.
Plaintiff claims that Defendants interfered with his medical treatment. Plaintiff began complaining about a cataract in his right eye in 2006. (Compl. ¶ 2.) Plaintiff was seen by Defendant Mathos, and Plaintiff was given eye drops for treatment and was scheduled for an operation. (Compl. ¶ 2.) After waiting several months without receiving his operation, Plaintiff filed a grievance complaining about his eye. (Compl. ¶ 3.) Plaintiff's grievance was partially granted, but the scheduled appointment with ophthalmology never happened. (Compl. ¶ 3.) Plaintiff was transferred to an prison in Mississippi a few days before his scheduled ophthalmology appointment. (Compl. ¶ 5.) Plaintiff contacted medical personnel at his new prison, but he was given the same ineffective treatment (eye drops) he received while at ASP. (Compl. ¶ 6.)
Plaintiff's condition has worsened since his first visit with Defendant Mathos. (Compl. ¶ 4.) The cream colored growth in his eye has grown larger and has obscured his vision. (Compl. ¶ 4.) Further, the condition ...