ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983, and a supplemental state law claim under California Civil Code § 43. Before the court is defendant Dr. Rohrer's request for clarification as to the claims upon on which this action is proceeding.
In his original complaint plaintiff alleged that prison officials failed to provide him necessary testing and medical treatment for his left shoulder pain. In that original complaint plaintiff named several defendants employed at four different correctional facilities. Because plaintiff failed to provide sufficient factual allegations in support of an Eighth Amendment claim based upon inadequate medical care, the court dismissed the complaint and granted plaintiff leave to file an amended complaint which addressed the noted deficiencies. (Doc. No. 7 at 5.) In the order of dismissal, plaintiff was advised that he should not include defendants who were employed at Pleasant Valley State Prison and Tehachapi Maximum Security Prison in any amended complaint filed in this court because the proper venue over any inadequate medical care claims arising at Pleasant Valley State Prison was in the Fresno Division of the U.S. District Court for the Eastern District of California. (Id. at 6.) However, the court determined that venue was proper in the Sacramento division of the court with respect to plaintiff's claims against defendants Dr. Rohrer, Warden Dickinson and Chief Medical Officer Traquina. As to those defendants, plaintiff was granted leave to file an amended complaint in this court which provided sufficient factual allegations regarding the defendants' involvement in the alleged constitutional violation, particularly with respect to the supervisorial defendants named in the original complaint. (Id. at 6-7.)
In his amended complaint filed January 6, 2010, plaintiff has named defendants Rohrer, Dickinson and Traquina. The court screened plaintiff's amended complaint and in that order determined that plaintiff had again failed to set forth sufficient factual allegations concerning supervisorial defendants Dickinson and Traquina to state a cognizable claim. (Doc. No. 14 at 2.) Accordingly, the court ordered service of process only on defendant Rohrer. (Id.) The court also noted that any claim that plaintiff was attempting to bring against defendant Dr. Rohrer was not cognizable. (Id. at 1 n.1.)
Thereafter, defendant Rohrer moved to dismiss the amended complaint due to plaintiff's failure to exhaust his administrative remedies prior to filing suit. (Doc. No. 19.) On July 19, 2011, the undersigned issued findings and recommendations recommending that the defendant's motion to dismiss be denied. (Doc. No. 29.) In a footnote, the court noted that this action is proceeding on the five claims presented in the amended complaint and not just on an Eighth Amendment medical care claim. (Id. at 2 n.1.) Those findings and recommendations were adopted by the assigned District Judge on September 7, 2011. (Doc. No. 31.)
In the pending request, defendant Dr. Rohrer seeks clarification as to the claims on which this action is proceeding. He asserts that it is not possible to file an answer to the amended complaint because the court's September 21, 2010 order indicates this action is proceeding on only one of five claims but a subsequent order and findings and recommendations indicates the action is proceeding on five claims presented by plaintiff's amended complaint.
The court finds counsel's confusion understandable and will take this opportunity to screen all five claims alleged in plaintiff's amended complaint.*fn1 As explained in this court's November 9, 2009 order, the court is required to screen complaints brought by prisoners seeking relief against an employee of a governmental entity. See 28 U.S.C. § 1915A(a).
A. First Claim for Relief
The court construes plaintiff's first claim for relief as an Eighth Amendment claim alleging that he received inadequate medical care. The court also finds that plaintiff has stated a cognizable Eighth Amendment medical care claim against defendant Dr. Rohrer. Plaintiff has previously been advised that a claim of inadequate medical care in violation of the Fourteenth Amendment is not cognizable. See Doc. No. 14 at 1 n.1.
B. Second Claim for Relief
In the second claim of his amended complaint, plaintiff alleges that the defendants violated his "right to personal security in violation of his rights under the Eight [sic] and Fourteenth Amendment to the United States Constitution." Am. Compl. (Doc. No. 12) at 11. The court finds that this claim is duplicative of plaintiff's first claim for relief. In this regard, under the section of the amended complaint titled, "Facts," plaintiff alleges that defendant Dr. Rohrer "failed to protect plaintiff's right to adequate medical care under the eight and Fourteenth Amendment . . . because/or when he knew after reviewing the MRI of plaintiff's left shoulder." (Id. at 9.) Although couched in "failure to protect" language, both of plaintiff's first two claims are based on the Eighth Amendment and allege that defendant Dr. Rohrer failed to provide plaintiff with constitutionally adequate medical care.*fn2 Therefore, the court will recommend that the second claim for relief set forth in plaintiff's amended complaint be dismissed as duplicative.
C. Third Claim for Relief
In the third claim of his amended complaint plaintiff alleges that he was the victim of an illegal conspiracy actionable under 42 U.S.C. §§ 1985 and 1986. ...