The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS ECF No. 1 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Plaintiff Loc Phat Le ("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 action pursuant to 42 U.S.C. § 1983. On March 27, 2012, Plaintiff filed his complaint. ECF No. 1. On October 19, 2012, the Court screened Plaintiff's complaint and found that it stated a cognizable Eighth Amendment claim against Defendant Chokatos, but failed to state any other claims against any other Defendants. ECF No. 9. Plaintiff was provided the opportunity to either file an amended complaint or notify the Court that he wished to proceed only on the cognizable claims. On November 1, 2012, Plaintiff notified the Court that he did not wish to amend and would proceed against Defendant Chokatos. ECF No. 10. The Court issues the following Findings and Recommendation.
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. Id. § 1915A(b)(1),(2). 2
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted." Id. § 1915(e)(2)(B)(ii). 5
A complaint must contain "a short and plain statement of the claim showing that the pleader 6 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events alleged in this action occurred. Plaintiff names as Defendants medical doctor John Chokatos, chief executive officer of healthcare services Anthony S. Lonigro, warden R. H. Brazelton, and secretary of CDCR Matthew Cate.
Plaintiff alleges the following. On May 30, 2011, Plaintiff collapsed in his unit cell. Compl. ¶ 9. Plaintiff had excruciating pain in his legs and ankles, swollen ankles, calves, and knees, dizziness, and fever. Compl. ¶ 9. A fellow prisoner, Le Kim, aided Plaintiff to his feet and practically carried him to the C-Facility medical center. Compl. ¶ 9. Because Plaintiff's English was sub-standard, Kim served as an interpreter. Compl. ¶ 9. Defendant Chokatos heard Plaintiff's the description of Plaintiff's symptoms and accused Plaintiff feigning them. Compl. ¶ 9. Defendant Chokatos told Kim to get out. Compl. ¶ 9.
During the medical exam, Defendant Chokatos tapped the back of Plaintiff's knees and ankles with a rubber mallet. Compl. ¶ 9. Defendant Chokatos then told Plaintiff that he could go. Compl. ¶ 9. Plaintiff made several attempts to tell Defendant Chokatos of the excruciating pain and what his specific symptoms were, but was ignored and dismissed from the medical center. Compl. ¶
9. Plaintiff persisted, and Defendant Chokatos motioned a correctional officer over and order Plaintiff to get up. Compl. ¶ 9. Fearing for his safety, Plaintiff left the clinic. Compl. ¶ 9. Plaintiff 2 contends that Defendant Chokatos has a pattern and practice of minimizing healthcare that is to be 3 administered. Compl. ¶ 10. Plaintiff was later diagnosed with cancer. 4
Plaintiff contends a violation of the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, Title II of the Americans with Disabilities Act ("ADA"), and § 504 of the 6 Rehabilitation Act. Plaintiff requests as relief compensatory and punitive damages, declaratory 7 relief, and costs of suit. 8