The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED OBJECTIONS DUE WITHIN 30 DAYS
Findings And Recommendation
Plaintiff Antonio Fahie ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on June 11, 2009. Plaintiff filed his first amended complaint on July 7, 2009. On October 28, 2009, the Court screened Plaintiff's first amended complaint and found that it failed to state a claim. Plaintiff was provided leave to file a second amended complaint. November 13, 2009, Plaintiff filed his second amended complaint. On May 19, 2010, the Court issued a Findings and Recommendation recommending dismissal of certain claims, and providing Plaintiff leave to amend as to his claims against Defendant Mercy Hospital. This order was adopted on June 21, 2010 by the District Judge assigned to this action. On July 22, 2010, Plaintiff filed his third amended complaint, which is pending before this Court.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Third Amended Complaint
Plaintiff was previously incarcerated at Kern Valley State Prison ("KVSP") in Delano, California. Plaintiff names as Defendants: Mercy Hospital, doctors Mamoud Rashidi and Shyi Tang Shiue of Mercy Hospital, CDCR, and doctors Larry DiLeo, Chen Chung Kwan, Adevunle Shlttu, and Farzim Mohtadi of KVSP.*fn1 Plaintiff also names doctors Eteshmi and Perry from Mercy Hospital in the body of his complaint.
Plaintiff alleges the following. On July 31, 2008, Plaintiff was taken to Mercy Hospital for the purpose of having surgery to relieve pain. Defendant Shiue performed the surgery. Plaintiff awoke to discover that he was paralyzed from the waist down. Plaintiff received a second surgery on August 15, 2008, performed by Defendants Eteshmi, Rashidi, and Perry. Plaintiff was no longer paralyzed. However, he now suffered from a medical condition called drop foot. Additionally, Plaintiff's pain was not relieved by the surgery. Plaintiff must be prescribed pain medication, and must utilize a walker.
Plaintiff alleges Defendant Shiue performed a surgery with no knowledge or study. Plaintiff alleges Defendant Mercy Hospital employed Defendant Shiue and disregarded many of Defendant Shiue's medical malpractice. Plaintiff alleges that being impaired with drop foot by Defendants Rashidi, Eteshmi, and Perry violated his Eighth Amendment rights. Plaintiff alleges that Defendants Kwan, DiLeo, Shlttu, and Mohtadi failed to provide Plaintiff with physical therapy as recommended by Defendant Rashidi.
Plaintiff contends a violation of the Eighth Amendment. Plaintiff seeks as relief declaratory relief, and compensatory and punitive damages.