The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER DISMISSING CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)
On August 31, 2010, Plaintiff, proceeding pro se, filed a civil action pursuant to 42 U.S.C. § 1983, along with a Motion to Proceed In Forma Pauperis ("IFP). At the time Plaintiff initially filed this action he was not incarcerated. Before the Court could rule on Plaintiff's IFP Motion and screen his Complaint, Plaintiff filed a First Amended Complaint. Since the filing of this action, Plaintiff has been in and out of the custody of the California Department of Corrections and Rehabilitation ("CDCR") more than once, and according to his latest notice of change of address [ECF No. 53] Plaintiff is currently housed in the San Diego Central Jail. The allegations giving rise to Plaintiff's action are based on events that occurred while he was housed at the Richard J. Donovan Correctional Facility ("Donovan").
On March 9, 2011, the Court issued an Order granting Plaintiff's Motion to Proceed IFP and found that many of the claims in Plaintiff's First Amended Complaint failed to state a claim upon which relief could be granted. Plaintiff was given the option to either proceed with the claims that survived the sua sponte screening process or file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court.
After requesting several extensions of time to file his Second Amended Complaint, which were granted by the Court, Plaintiff filed his Second Amended Complaint ("SAC") on August 10, 2011 [ECF No. 35].
II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2)
As stated by the Court in its previous Order, any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the Court to the extent it contains claims which are "frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.").
As an initial matter, Plaintiff no longer names Defendants Schwarzenegger, Bowen, Laguna, Petterson, Clardy, Sheldon, Pickett, Malajandro, Kemp, Grannis or Simon in his Second Amended Complaint. Thus. the claims against these Defendants are waived and they are DISMISSED from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
The Court finds that Plaintiff has adequately stated a retaliation claim against Defendants Romero and Pederson. Thus, these claims survive the sua sponte screening process.
C. Count 2 - Eighth Amendment Inadequate Medical Care claims
Plaintiff alleges that on January 29, 2010 he was the "victim of a battery by two inmates." (SAC at 12.) Plaintiff claims that he was "hit in the forehead with a rock" which knocked him unconscious. (Id.) As a result of the attack, Plaintiff claims he had a "red and bloody baseball size lump on the right side of his forehead." (Id.) Plaintiff sought medical care from several of the named Defendants, however he claims that they all ignored his requests even though it was evident that he had suffered an injury. (Id. at 12-18.)
While the Court finds that Plaintiff has adequately stated a claim against most of the Defendants named in "Count 2," the Court finds that Plaintiff has not adequately stated a claim against Defendant Asbury. In order to assert a claim for inadequate medical care, Plaintiff must allege facts which are sufficient to show that each person sued was "deliberately indifferent to his serious medical needs." Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). To be ...