The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE GRANTED OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Adam Galvan ("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 Soledad Valley State Prison. Plaintiff is suing under Section 1983 for the violation of his rights under the Eighth Amendment. Plaintiff names Dr. Shittu as a defendant ("Defendant"). For the reasons set forth below, the Court recommends that the motion to dismiss be granted.
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 proceeds on Plaintiff's first amended complaint filed on May 22, 2009. (Doc. #17.) After screening Plaintiff's first amended complaint on June 1, 2009, the Court determined that this action should proceed on Plaintiff's claim against Defendant for deliberate indifference in violation of the Eighth Amendment. Defendant filed a motion to dismiss on March 15, 2010. (Doc. #35.) Plaintiff did not file an opposition. On May 26, 2010, Defendant filed a reply noting Plaintiff's failure to file an opposition. (Doc. #38.)
The present action arises from events that occurred while Plaintiff was an inmate at Kern Valley State Prison ("KVSP"). Plaintiff alleges that Defendant Shittu was deliberately indifferent to his medical needs in violation of the Eighth Amendment. Plaintiff suffers from the effects of a gun shot wound he endured several years ago. Plaintiff has little use of his right hand and suffered brain damage from the fragments of a bullet left in his brain. Plaintiff also alleges that he experiences severe pain.
Plaintiff was seen by Defendant, and requested to be placed on "ADA status" and transferred to a medical institution where he could receive some form of physical therapy. Plaintiff alleges that Defendant refused to grant Plaintiff "ADA status" and stated that he "really didn't care about [Plaintiff's injuries] or that [he] must receive therapy." (Am. Compl. 3, ECF No. 17.)
C. Defendant's Motion to Dismiss
Defendant moves for dismissal on several grounds. First, Defendant argues that Plaintiff failed to exhaust his administrative remedies before filing suit, as required by the Prison Litigation Reform Act ("PLRA"). Defendant argues that Plaintiff did not pursue his administrative remedies pertaining to the present complaint through all levels of review to a Director's Level Decision. (Mot. to Dismiss 4:21-23, ECF No. 35.) Defendant further notes that Plaintiff attached exhibits to his First Amended Complaint that contradict his assertions of deliberate indifference. (Id. at 6:22-7:3.) Thus, Defendant maintains that Plaintiff has failed to state a claim. Finally, Defendant argues that Plaintiff lied to the Court under penalty of perjury in his complaint when he indicated that he had not filed any other lawsuits as a prisoner. Defendant states that Plaintiff had previously brought a complaint ...