The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THIS ACTION (Doc. 18) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Anthony Jr. Gomez ("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 ("CDCR") and is currently incarcerated at the California Substance Abuse Treatment Facility and State Prison ("CSATF-SP") in Corcoran, California. However, the events described in Plaintiff's complaint took place while he was incarcerated at the Sierra Conservation Center ("SCC") in Jamestown, California. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth Amendment. Plaintiff names Malifi (warden), Thomatos (physician), Peterson (physician), Helen (x-ray technician), Reich (registered nurse), Conant (registered nurse), Chang (registered nurse), Mendoza (correctional officer), Gamez (correctional sergeant), and Drew (correctional lieutenant) as defendants. For the reasons set forth below, the Court finds that Plaintiff's second amended complaint fails to state any cognizable claims. The Court will recommend that Plaintiff's claims be dismissed with prejudice.
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).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
This action was transferred to this Court from the Northern District of California on March 3, 2006. (Doc. #1.) On September 6, 2006, the Court dismissed Plaintiff's complaint for failure to state any claims upon which relief can be granted. (Doc. #6.) Plaintiff was given leave to file an amended complaint. On October 23, 2006, Plaintiff filed his first amended complaint. (Doc. #11.) Plaintiff's first amended complaint was screened and dismissed by the Court on May 20, 2009. (Doc. #12.) The Court again found that Plaintiff's complaint failed to state any claims and gave Plaintiff leave to file an amended complaint. On July 6, 2009, Plaintiff filed his second amended complaint. (Doc. #18.) This action proceeds on Plaintiff's second amended complaint.
Plaintiff suffered a severe injury to his right hand on October 22, 2005. Plaintiff was told that his hand was probably broken and that he would need medical attention as soon as possible. Plaintiff was told that he would be scheduled to see a doctor on October 24, 2009. Plaintiff was in tremendous pain, but was not given any pain medication.
On October 23, 2005, Plaintiff asked a psychiatric technician for pain medication. The technician gave Plaintiff some pain medication, but Plaintiff did not receive a prescription for medication in the future. Plaintiff was not given any pain medication and did not see a doctor from October 22, 2005 to November 17, 2005. Plaintiff submitted four different requests for medical care and made numerous complaints to correctional officers about his condition, including correctional officer Mendoza.
On November 10, 2005, Plaintiff was interviewed by a lieutenant about his medical problems. The lieutenant gave Plaintiff a note and was told to give it to prison staff to alert them about Plaintiff's medical condition. A registered nurse made a call requesting medical attention for Plaintiff's hand. On November 11, 2005, Plaintiff gave the note to Defendant Gamez. Gamez ignored the note.
On November 14, 2005, Plaintiff was examined by Defendant Helen. Helen did not aid Plaintiff because she concluded that Plaintiff was fine. Helen instead "antagonized" Plaintiff and confiscated Plaintiff's "ace bandage." On November 18, 2005, Plaintiff was seen by Defendant Peterson. Peterson prescribed pain medication and a hand splint. On November 28, 2005, Plaintiff spoke with another lieutenant about the lack of medical care. The lieutenant made a phone call and told Plaintiff that his hand split was with the health care department, but could not be delivered until approved.
On November 29, 2005, Defendant Drew made a phone call to Defendant Conant after Plaintiff complained about his condition. Conant told Drew that Plaintiff's x-ray was reviewed and it revealed that Plaintiff's hand was not broken. Conant further stated that the hand splint was ...