The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
REPORT AND RECOMMENDATION THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED [Document No. 11]
On July 14, 2009, Plaintiff Leslie Johnson, a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 against the following Defendants: George Neotti, warden of the Richard J. Donovan Correctional Facility ("R.J.D."); S. Laming, a registered nurse at R.J.D.; Akbari, Dr. (erroneously sued as Akbara), a medical doctor at R.J.D.; Silva, Dr., a medical doctor at R.J.D.; Liptscher (erroneously sued as Lipshir), a transportation officer at R.J.D.; and Espinoza, a transportation officer at R.J.D. (Doc. No. 1.)*fn1 Plaintiff does not indicate whether he sues Defendants in their individual or official capacities. (Compl. at 2-3.) On October 1, 2009, this Court sua sponte dismissed Defendant Neotti. (Doc. No. 4.) On November 16, 2009, a summons was returned unexecuted by Plaintiff as to Defendant Laming. (Doc. No. 6.)
On December 29, 2009, Defendants Akbari, Silva, Liptscher, and Espinoza filed a Motion to Dismiss Plaintiff's Complaint or Strike Portions Thereof. (Doc. No. 11.) After a thorough review of the parties' papers and all supporting documents, this Court RECOMMENDS Defendant's Motion to Dismiss be GRANTED with leave to amend.
1. Eighth Amendment: Medical Needs
Plaintiff alleges Defendants were deliberately indifferent to his medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. (Compl. at 3.) Plaintiff presents this claim in his Complaint and attaches 109 pages of medical records and other documents to support this claim.
Plaintiff is an inmate at Richard J. Donovan Correctional Facility ("R.J.D") in San Diego, California. (Compl. at 1.) Plaintiff alleges he was in an automobile accident while returning from Alvarado Hospital to R.J.D on May 2, 2008. (Compl. at 4.) An ambulance arrived at the scene and paramedics examined Plaintiff, who described his injuries and level of pain. (Compl. at 4.) Plaintiff contends a paramedic asked Defendants Liptscher and Espinoza, the transportation officers, if they planned to take Plaintiff to the hospital to be examined. (Compl. at 4.) Plaintiff alleges Defendants Lipstcher and Espinoza told the paramedics they would not bring Plaintiff to a hospital, and instead, Plaintiff would be examined by prison medical staff at R.J.D. (Compl. at 4.) Plaintiff contends Registered Nurse S. Laming examined him at R.J.D.'s medical center. (Compl. at 4.) Plaintiff described his injuries and level of pain to Laming and asked to be examined by a doctor. (Compl. at 4.) Plaintiff alleges Laming told him he was fine, and instructed him to return to his cell, take ibuprofen, and drink tea. (Compl. at 4.)
Plaintiff's medical records and other supporting documents provide more details on the prison van accident and Plaintiff's medical care after the accident. In a declaration, Plaintiff alleges that on the date of the accident, he had a liver biopsy at Alvarado Hospital. (Decl., Attachments at 2.)*fn2 Plaintiff contends that during the journey back to R.J.D. after the procedure, the prison van he was riding in was struck on the rear end by another vehicle. (Decl., Attachments at 2.) As a result of the accident, Plaintiff claims in his declaration that he was thrust forward and suffered injuries to his shoulder, back, wrist, and the right side of his body. (Decl., Attachments at 3.)*fn3 In a prison appeal form attached to the Complaint, Plaintiff contends his belief that Defendants Liptscher and Espinoza acted in "reckless disregard to the fact that their passenger. was injured" and should have allowed Plaintiff to be treated at a hospital. (Attachments at 5.)
In his declaration, Plaintiff contends he was denied medical treatment after the initial exam by Laming. (Decl., Attachments at 3.) Plaintiff also alleges he was prescribed pain medications by Defendants Akbari and Silva, and other facility doctors only after several months of complaining and filing inmate appeals. (Decl., Attachments at 3.)
The medical records show Plaintiff sought medical care numerous times between May 2, 2008, and October 30, 2008. On May 3, 2008, Plaintiff sought pain medication. (Attachments at 11.) The medical records show a physician ordered pain medication and X-rays, and Plaintiff received a cane to aid his walking. (Attachments at 10, 11, 23.) On May 4, 2008, Plaintiff again sought pain medication and X-rays, and a physician ordered pain medication. (Attachments at 22, 53.) Plaintiff's records also include a prescription for pain medication from May 5, 2008. (Attachments at 27.)
On May 13, 2008, Plaintiff also sought medical care for back pain and chest pain, and a doctor ordered trigger point injections. (Attachments at 15, 26, 45.) On May 13, 2008, a doctor ordered physical therapy, pain medication, and X-rays. (Attachments at 20.) On May 14, 2008, a physician ordered Motrin, which Plaintiff refused. (Attachments at 42.) On May 18, 2008, a physician ordered another pain medication, Toradol. (Attachments m at 21). On May 20, 2008, Plaintiff sought medical care again for pain in his neck, shoulder, and back, and a physician ordered pain medication, X-rays, and an MRI. (Attachments at 14.) On May 21, June 15, and June 16, 2008, Plaintiff again sought medical care for back pain. (Attachments at 43, 39, 38.) On June 20, 2008, a medical care provider indicated in progress notes that pain medication was again prescribed to Plaintiff. (Attachments at 17.)
On July 2, 2008, Plaintiff received trigger point injections, administered by Dr. Glazener at Alvarado Hospital. (Attachments at 8, 65, 69.) On July 14, 2008, Plaintiff again requested medical care for back pain. (Attachments at 30.) In mid-September, Plaintiff received trigger point injections again, and in late October, Plaintiff had an MRI. (Attachments at 7, 16.) In his declaration, Plaintiff alleges after his MRI, orthopedic surgeon Dr. Smith ordered surgery on his shoulder and wrist. (Decl., Attachments at 3.) Plaintiff also claims in his declaration that because he experienced extreme pain after surgery, Dr. Smith prescribed morphine.*fn4 (Decl., Attachments at 3.) Plaintiff contends in his declaration "the [denial] and delay of medical treatment is the reason [his] surgery has not been successful and is why [he is] still suffering in pain and need[s] prescribed narcotics just to sleep." (Decl., Attachments at 2.)
2. First Amendment: Right to Petition the Government
Plaintiff alleges Defendants violated his First Amendment right to petition the government for redress of grievances. (Compl. at 3.) Specifically, Plaintiff alleges he filed an administrative appeal in the prison grievance system, and the appeal was subsequently lost. (Compl. at 6.)Again, Plaintiff presents this claim in his Complaint and attaches documents in support of this claim.
Plaintiffmentions his access to courts claim twice in his Complaint. First, Plaintiff alleges his CDC 602 Inmate/Parolee Appeal was lost. (Compl. at 6.) Second, Plaintiff contends his appeal was filed on July 22, 2008. (Compl. at 6.)
Plaintiff provides more detail on his access to courts claim in his Attachments by including three pertinent documents. First, Plaintiff includes a CDC 602 Inmate/Parolee Appeal Form dated May 13, 2008. (Attachments at 4-5.) In his appeal form, Plaintiff requested X-rays and an MRI or a CAT-Scan, and demanded to be informed why R.J.D.'s medical staff failed to treat him immediately following the accident. Plaintiff also mentioned filing a civil suit for damages in his appeal form. Second, Plaintiff also includes a letter from the Inmate Appeals Office dated July 22, 2008, which notified Plaintiff his appeal form was sent to a second level. (Attachments at 58.) Third, Plaintiff included a letter dated February 18, 2009, from Plaintiff to the Office of the Inmate Appeals Branch of the State of California Department of Corrections, inquiring about his third-level appeal. (Attachments at 109.)
On July 14, 2009, Plaintiff filed a complaint against Defendants Neotti, Laming, Akbari, Silva, Liptscher, and Espinoza. (Doc. No. 1.) On August 4, 2009, the Court dismissed the complaint without prejudice for failure to pay filing fees and/or failing to move to proceed in forma pauperis. (Doc. No. 2.) On September 17, 2009, Plaintiff filed a motion for leave to proceed in forma pauperis, (Doc. No. 3) and on October 1, 2009, this Court granted Plaintiff's motion (Doc. No. 4). Also on October 1, 2009, the Court sua sponte dismissed Defendant Neotti. (Doc. No. 4.) On November 16, 2009, a summons was returned unexecuted by Plaintiff as to Defendant Laming. (Doc. No. 6.)
In his Complaint, Plaintiff alleges Defendants violated his First Amendment right to petition the government for redress of grievances and his Eighth Amendment right to be free from cruel and unusual punishment based on Defendant's alleged deliberate indifference to Plaintiff's medical needs. (Compl. at 3-5.)
On December 29, 2009, Defendants Akbari, Silva, Liptscher, and Espinoza filed a Motion to Dismiss Plaintiff's Complaint, or Strike Portions Thereof.*fn5 (Doc. No. 11.) Defendants seek dismissal in whole or in part on the grounds that: (1) Defendants are immune to suit in their official capacities under the Eleventh Amendment; (2) Plaintiff fails to state a claim against Defendants under the Eighth Amendment; (3) Plaintiff fails to state a claim against Defendants under the First Amendment; and (4) Defendants are not liable based on a theory of vicarious liability. (MTD at 2.) Defendants seek to strike as superfluous pages 56, 57, 59-62, and 64-108 of the Complaint's ...