The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THIRD AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 54)
OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS
Findings And Recommendations
Plaintiff Richard Ernest Anaya ("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 and Title II of the Americans with Disabilities Act. This action is proceeding against Defendants Chen and Lopez for deliberate indifference to a serious medical need in violation of the Eighth Amendment and against Defendants Lopez, Chen, R. Keldgore, Lopez, Herrington, and J. White for violation of Title II of the ADA. Pending before the Court is Plaintiff's third amended complaint, filed August 26, 2011, which Plaintiff labels as a "Motion to Amend." Doc. 54. The Court screens the third amended complaint pursuant to 28 U.S.C. § 1915A.
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 is currently incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: S. Lopez, chief medical officer; Chen, medical doctor; L. DiLeo, medical doctor; J. White, CC II (correctional counselor II); R. Kelgore, associate warden; and Herrington, warden.
Plaintiff alleges the following. Defendant Lopez knew of and disregarded an excessive risk to Plaintiff's health by denying Plaintiff a medical chrono for a single cell on July 13, 2009. Third Am. Compl. ("TAC") 2:23-3:10. A previous chief medical officer had found that Plaintiff should be single celled because he has Hepatitis C, which can be transmitted to other inmates. Id. Plaintiff has bleeding because of a rectal prolapse which makes him more susceptible to catching a disease. Id. A surgeon on July 11, 2006 found that Plaintiff is permanently disabled and should be single-celled. Id. at 3:11-26. Defendant Lopez is also denying follow-up care for Plaintiff's lower back which is causing Plaintiff acute pain when Plaintiff has a prolapse. Id. Plaintiff's right knee is in pain and requires surgery. Id.
Plaintiff has lower extremity problems which require the use of grab bars around the toilet. Id. at 4:1-20. Plaintiff qualifies for ADA disability but has not been given grab bars for his cell. Id. Plaintiff has a hernia that pushes into Plaintiff's lung, which causes breathing problems. Id. Defendant does not provide adequate pain medication. Id. Plaintiff contends intentional discrimination. Id.
On February 9, 2009, Defendant Chen was aware and on notice that Plaintiff was infected with Hepatitis C, which can infect other inmates. Id. at 4:23-6:2. Plaintiff was also more susceptible to catching other diseases, such as HIV-AIDS, or Heptatis A and B. Id. Plaintiff was intentionally discriminated against regarding ADA accommodations. Id. Doctors have found that Plaintiff was permanently disabled. Id. Plaintiff has a bulging disc and vertebrae. Id.
On April 6, 2009, Defendant J. White and R. Kelgore were responsible for denying Plaintiff single cell status and housing Plaintiff in a cell without grab bars. Id. at 7:16-8:12. Plaintiff contends that both Defendants knew Plaintiff had a chrono that should be honored at all institutions. Id. Plaintiff contends that housing him with another inmate was done with the intent to "rooster fight" Plaintiff with other inmates who get aggressive after finding out Plaintiff has Hepatitis C. Id.
On July 13, 2009, Defendant Herrington denied Plaintiff's appeal. Id. at 8:15-9:5. Plaintiff contends that Defendant Herrington knew of the risk of serious harm to Plaintiff and failed to respond. Id. Plaintiff contends Defendant Herrington intentionally discriminated against Plaintiff by denying him a grab bar cell, as well as a single cell. Id. ...