The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (DOC. 1)
OBJECTIONS, IF ANY, DUE WITHIN
Findings And Recommendations
Plaintiff Alfred Brown ("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 on December 31, 2009, by filing his complaint in the Southern
District of California. On February 1, 2010, the Southern District
transferred this action to the Eastern District of California, and
also dismissed some of Plaintiff's claims as time-barred.*fn1
On October 12, 2010, the Court screened Plaintiff's complaint
and dismissed it for failure to state a claim, with leave to amend.
Doc. 12. After numerous extensions of time, Plaintiff filed his first
amended complaint on September 23, 2011. Doc. 22.
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 Amended Complaint
Plaintiff was incarcerated at California Substance Abuse and Treatment Facility ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants Charles D. Pickett, David Smith, R. Asuncion, B. Shaw, D. Robbins, staff counsel for the legal affairs division, A. Arroyo, litigation coordinator of the health care services division, D. Duvall, appeals coordinator, P. McGuinness, chief medical officer, and Does 1-3 (Director of Corrections, Legal Affairs Director, and Health Care Director).
Plaintiff alleges the following.*fn2 Plaintiff had reached a settlement agreement with the CDCR in the case of Brown v. Pickett, et al., Case No. 96-CV-493 J(AJB), (S. D. Cal.), on March 16, 2000.*fn3 Pursuant to the agreement, Plaintiff was to have surgery. Pl.'s Am. Compl. 4.
Plaintiff alleges that Defendants Does 1-3 had no intention of complying with the agreement. Id. Plaintiff received correspondence from Defendant D. Robbins, staff counsel, who informed Plaintiff that they would be closing the case file, knowing that they had not complied with the agreement. Id. at 5. Plaintiff immediately replied to Defendant Robbins's letter, putting Does 1 through 3 and Robbins on notice. Plaintiff did not receive a reply. Id. at 6.
On August 27, 2003, Defendant Arroyo was contacted, but Plaintiff received no response. Id. Plaintiff contends that Defendants Robbins and Arroyo acted as shields for their department heads. Id.
Plaintiff filed an inmate grievance on February 24, 2004, which was suspended March 2, 2004. Id. at 7. On April 29, 2004, Plaintiff wrote a request for interview about the suspension of the grievance to Defendant Duvall. Id. On May 10, 2004, Defendant D. Duvall stated that it was within the purview of the institution to recommend a treatment plan and to address Plaintiff's issues at the institutional level. Id. Plaintiff contends that this was not the agreement. Id.
The inmate grievance did not receive a second level review until November 8, 2005. Id. at 8. Defendant McGuinness signed the final decision, though Plaintiff believes it was ...