The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, in this action brought pursuant to 42 U.S.C. § 1983. Following the court's dismissal of plaintiff's original complaint, with leave to amend, plaintiff has filed an amended complaint.
The court has reviewed plaintiff's amended complaint and, for the limited purposes of Section 1915A screening, finds that it may state potentially cognizable claims, based on a theory of deliberate indifference to plaintiff's medical needs, against defendant physicians Hashimoto and Smith. See 28 U.S.C. § 1915A. However, for the reasons stated below, the court finds that the complaint does not state potentially cognizable claims against defendants Ram or Martel.
Plaintiff alleges that, on October 2, 2008, he was injured while a passenger in a correctional van en route to an outside medical facility. Plaintiff states that the van he was riding in was rear-ended by a second correctional van, driven by correctional officer Ram. Plaintiff alleges that, as a result of the accident, he sustained injuries to his neck, back, and shoulder, and continues to experience pain, headaches and dizziness, but that he has been denied adequate medical treatment, perhaps because correctional staff are attempting to conceal the accident. Plaintiff seeks proper medical treatment and damages.
Plaintiff names two medical defendants: (1) Dr. W. Hashimoto, one of plaintiff's treating physicians, and the physician who interviewed plaintiff pursuant to the First Level Review of plaintiff's pertinent (and exhausted) administrative grievance; and (2) Dr. Christopher Smith, who signed the denial of a request for medical authorization that plaintiff obtain an MRI of his right shoulder. Based on a liberal construction of the amended complaint and supporting exhibits, plaintiff contends that these defendants were deliberately indifferent to plaintiff's serious medical needs, in violation of the Eighth Amendment. While the current allegations are cursory, plaintiff will be permitted to further develop his case against these defendants, should this action survive a motion to dismiss.
In contrast, plaintiff's allegations against defendant Ram fail to state a potentially cognizable claim. Plaintiff states only that correctional officer Ram was "responsible for my safety," but "was negligent and reckless by not paying attention of (sic) his driving duties." (Dkt. No. 14 at 3.) To pursue this state law claim, an alleged tort, pursuant to this court's supplemental jurisdiction, plaintiff was required to timely file a claim under the California Tort Claims Act. Timely presentation of a written tort claim against a public entity or its employees, and action on or rejection of the claim, are conditions precedent to suit. State v. Superior Court of Kings County, 32 Cal. 4th 1234, 1244-45 (2004). Plaintiff does not allege compliance with the state's requirements for filing a tort claim, and such compliance is not demonstrated by plaintiff's exhibits. Because the court previously informed plaintiff of these deficiencies (see n.1, infra), defendant Ram should be dismissed from this action without further leave to amend.
The last named defendant is A. Martel, former Warden of Mule Creek State Prison. Plaintiff alleges only that Martel "is responsible fo his prison Employee's" (sic). (Dkt. No. 1 at 3.) However, as the court previously informed plaintiff,*fn1 supervisory liability may be imposed only when the supervisor participated in or directed the alleged constitutional violations, or knew of the violations of subordinates and failed to act to prevent them." Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Plaintiff makes no such allegations against Martel, or the current warden of Mule Creek State Prison. Thus, defendant Martel should also be dismissed from this action without further leave to amend.
For these reasons, the court finds that the amended complaint appears to state potentially cognizable claims against defendants Hashimoto and Smith; however, defendants Ram and Martel should be dismissed from this action without prejudice.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's current motion to proceed in forma pauperis (Dkt. No. 15), is denied as duplicative; plaintiff proceeds in forma pauperis pursuant to his application filed June 23, 2010 (Dkt. No. 8).
2. Service of process is appropriate for defendants Hashimoto and Smith.
3. The Clerk of the Court is directed to send plaintiff two (2) USM-285 forms, one summons, an instruction sheet, and a copy of the amended complaint filed July 14, 2011 (Dkt. No. 14).
4. Within thirty days after service of this order, plaintiff shall complete the attached Notice of Submission of Documents, and submit ...