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Anthony Mack v. Susan Hubbard

November 1, 2011

ANTHONY MACK,
PLAINTIFF,
v.
SUSAN HUBBARD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 1)

Screening Order

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132.. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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).

Pursuant to Federal Rule of Civil Procedure 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation nat Corcoran State Prison, brings this ADA action against officials employed by the CDCR at Corcoran State Prison. Plaintiff names 27 individual defendants.

Plaintiff alleges that he suffers from a "chronic and serious foot disability" and is required to wear orthopedic footwear. Plaintiff alleges that "prison officials" confiscated and disposed of his footwear. (Compl. ¶ 23.) Plaintiff was forced to wear shoes with no supports for over 28 months. (Compl. ¶ 24.) Plaintiff alleges that after filing inmate grievances, and multiple medical visits, a podiatrist recommended soft shoes. The podiatrist failed to recommend any particular specifications. Plaintiff was not issued the soft soled shoes. (Compl. ¶ 31.)

On February 7, 2008, Plaintiff was summoned to the medical clinic, and offered strap-on soft soled shoes "sent from the laundry." Plaintiff alleges that they were not properly designed for his foot condition, and that "no further accommodations or treatment or preventive measures have followed since." (Compl. ¶ 33.)

In April of 2008, the podiatrist recommended foot surgery. Plaintiff had "several re-consults," and was approved for foot surgery by an outside orthopedic surgeon on January 12, 2009. On January 23, 2009, the Acting Chief Medical Officer rejected the recommendation and cancelled the surgery. (Compl. ¶¶ 34-37.) Plaintiff contacted a private organization, the Prison Law Office. The Prison Law Office "contacted the Attorney General's Office under the procedures set forth under the Plata stipulation." (Compl. ¶ 39.)

On March 10, 2009, Plaintiff was seen at the prison hospital. It was determined that surgery was warranted, and another request for surgery was issued. It was also determined that the soft shoes issued earlier were "medically inappropriate." Another chrono for personal footwear was issued. On March 17, 2009, Plaintiff's shoes, ordered on March 12th, were received at the prison. Plaintiff alleges that he was given the run around, and eventually told that the shoes were lost. The shoes were re-ordered, and Plaintiff eventually received them on October 5, 2009. Plaintiff alleges that the shoes did not fit. (Compl. ¶ 66.)

Plaintiff underwent foot surgery on March 30, 2009. Plaintiff alleged that the surgery was performed negligently, as the procedure was only performed on one toe, and not the ...


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