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Foster v. Bhambi

United States District Court, Ninth Circuit

December 11, 2013

ALLEN FOSTER, Plaintiff,
v.
DR. BHAMBI, M.D., et al., Defendants.

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Doc. 25.) OBJECTIONS, IF ANY DUE IN THIRTY DAYS

GARY S. AUSTIN, Magistrate Judge.

I. BACKGROUND

Allen Foster ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 20, 2010. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on November 30, 2011, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On January 24, 2012, Plaintiff filed the First Amended Complaint. (Doc. 14.) On June 4, 2012, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 20.) On June 20, 2012, Plaintiff filed the Second Amended Complaint. (Doc. 22.) On March 28, 2013, the Court dismissed the Second Amended Complaint for violation of Local Rule 220, with leave to amend. (Doc. 24.) On April 15, 2013, Plaintiff filed the Third Amended Complaint, which is now before the court for screening. (Doc. 25.)

II. SCREENING REQUIREMENT

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).

III. SUMMARY OF THIRD AMENDED COMPLAINT

Plaintiff is presently incarcerated at the Richard J. Donovan Correctional Facility in San Diego, California. The events at issue in the Third Amended Complaint allegedly occurred at Pleasant Valley State Prison in Coalinga, California, when Plaintiff was incarcerated there, and Bakersfield Memorial Hospital. Plaintiff names as defendants Dr. Bhambi (M.D.), and Bakersfield Memorial Hospital. Plaintiff's allegations consist of the following, in their entirety:

"On approximately 9-22-06, the Defendant Doctor Bhambi, acted with Deliberate Indifference to Plaintiff's serious medical needs forcing Plaintiff to undergo a medical procedure (implanting stents), a procedure that has caused Plaintiff to suffer from significant injury, unnecessary and wanton infliction of pain."

(Third Amd Cmp, Doc. 25 at 3 ¶ IV.) Plaintiff requests monetary damages as relief.

IV. PLAINTIFF'S MEDICAL CLAIM

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. "Section 1983... creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho , 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress." Id.

Under federal notice pleading, a complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). 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 , 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient ...


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