United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C § 1983. Currently pending before the court are plaintiff's amended complaint and defendant Syerson's motion to dismiss. ECF Nos. 22, 18. The court will construe plaintiff's amended complaint as a motion for leave to amend and grant the motion. Nevertheless, for the reasons discussed below, the amended complaint does not cure defects addressed in defendant Syerson's motion to dismiss, and that motion must be granted.
Plaintiff filed this action on November 5, 2012. ECF No. 1 at 32. As relevant here, plaintiff alleges that defendant Syerson, a surgeon at Lassen Surgery Center, provided negligent medical care to him during a hemorrhoidectomy on June 26, 2007. Id. at 4, 7. Specifically, plaintiff claims:
On June 26, 2007, plaintiff was transferred from H.D.S.P. [High Desert State Prison] to the Lassen Surgery Center... where defendant "Syerson" performed and [sic] elective hemorrhoidectomy surgery on plaintiff.
Because defendant Syerson lacked the proper surgical equipment, after surgery/during [sic] plaintiff developed significant bleeding, which resulted in plaintiff being taken back to surgery at the Lassen Surgery Center, where plaintiff had an examination of the hemorrhoidectomy wounds and multiple additional sutures for hemostasis.
* * *
Defendant Syerson by his actions, as described above..., acted negligently and recklessly.
A reasonably competent surgeon would have been adequately prepared prior to performing an intrusive surgery, however defendant Syerson failed to act as a reasonably competent surgeon.
As a proximate cause of defendant Syerson's actions, plaintiff suffered from significant bleeding, anemia, anxiety, and bilateral pulmonary embolisms.
Plaintiff's amended complaint, filed after defendant Syerson's motion to dismiss, makes the same allegations against him. ECF No. 22 at 5, 8.
Plaintiff has previously sued defendant Syerson, in a Lassen County Superior Court complaint filed June 27, 2012. ECF No. 18-2 and exhibits thereto. Plaintiff's allegations against defendant Syerson in the state case are identical to the allegations presented here. ECF No. 18-3 at 5-6, 9. The state court sustained defendant Syerson's unopposed demurrer to that complaint, concluding, "The cause of action for professional negligence is barred by Code of Civil Procedure section 340.5 as tolled by Code of Civil Procedure section ...