The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED / OBJECTION DUE WITHIN THIRTY DAYS
Findings and Recommendations Following Screening of First Amended Complaint
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on the first amended complaint filed in response to an order dismissing the original complaint. Plaintiff claims that Defendants have subjected him to inadequate medical care such that it constitutes cruel and unusual punishment in violation of the Eighth Amendment.
II. Screening Requirement
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).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted)
Plaintiff names the following individual defendants: Dr. Roland Rodriguez, M.D.; Dr. David Smith, M.D.; Dr. J. Friedman, M.D; Warden James Yates; Chief Medical Officer Igbignosa; former CDCR Secretary James Tilton.*fn1
The events that give rise to this lawsuit began while Plaintiff was housed at Salinas Valley State Prison (SVSP). Plaintiff alleges that on "several continuous occasions," he complained of severe shoulder, neck and head pain." (Am. Compl. ¶ 3.) Plaintiff alleges that "medical staff" purposefully ignored and failed to respond to his medical needs. Id.
On October 24, 2003, Plaintiff underwent an unspecified surgical procedure. (Am. Compl. ¶ 4.)*fn2 Plaintiff underwent a second surgery on January 8, 2004, after "complaints of severe pain to left shoulder, neck and head pain and left side of bottom of outside of ear, and a systematic delay." (Am. Compl. ¶ 5.) *fn3
On December 19, 2003, Plaintiff was seen by Dr. Friedman, who performed a "pain evaluation." (Am. Compl. ¶ 10.) Dr. Friedman mis-diagnosed Plaintiff, causing "negligence of any further adequate medical treatment by the entities of the California ...