United States District Court, E.D. California
FINDINGS AND RECOMMENDATION DISMISSING
PLAINTIFF'S THIRD AMENDED COMPLAINT WITH PREJUDICE [ECF
No. 26] THIRTY-DAY DEADLINE
L. BECK, UNITED STATES MAGISTRATE JUDGE
Benito Aguilar ("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. Plaintiff filed his complaint on
August 26, 2013. On April 23, 2014, the Court screened the
complaint and dismissed it with leave to amend. On May 22,
2014, Plaintiff filed a First Amended Complaint. On October
2, 2014, Plaintiff moved for leave to file a Second Amended
Complaint, and the Court granted Plaintiff's motion on
October 15, 2014. On September 16, 2015, the Court screened
the Second Amended Complaint and struck it for failing to
comply with the Court's screening order. Plaintiff was
granted leave to file a Third Amended Complaint
("TAC"). On October 13, 2015, Plaintiff filed a TAC
which is currently pending before this Court.
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. §
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 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 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.
is currently incarcerated at Folsom State Prison. He brings
claims concerning events which occurred while Plaintiff was
incarcerated at California Correction Institution
("CCI") in Tehachapi, California. Plaintiff names
as Defendants: Warden Kim Holland, Dr. Harold Tate, Dr. Khan
Lee, Dr. T. Bingamon, Dr. A. Joaquin, Dr. S. Shiesha, Chief
California Correctional Healthcare Services Officer L.D.
Zamora, Deputy Director of Policy and Risk Management
Services of California Correctional Healthcare Services J.
Lewis, CCI Chief Executive Officer D. Longcrier, CCI Chief
Physician and Surgeon U. Baniga, Healthcare Services Appeals
Coordinator L. Ledford, CCI Appeals Coordinator J. Wood, Dr.
R. Allen, Dr. Mehul Taylor, and Dr. Young N. Paik.
states that on March 12, 2008, he was the victim of a serious
physical assault and battery. He sustained various serious
injuries including: dislocated left elbow, left arm fracture,
ligament and nerve damage from the left hand to the left
shoulder, left shoulder dislocation, rotator cuff tear, and
left arm biceps tear. Plaintiff experiences numbness
extending down his left upper extremities; pain to his left
shoulder blade, tailbone, lower back, jaw, neck, head, right
leg, and right ankle; and dizziness. Plaintiff continues to
complain of pain, discomfort, suffering, and emotional
distress as a result of these injuries.
has sought and continues to seek medical attention for his
pain and suffering. He has filed grievances on numerous
occasions through the assigned nurses and doctors, and has
presented personally recommended medical documents to the CCI
medical personnel, the medical Authorization Review
Committee, appeals coordinators, and administration in order
to be seen by a physician or orthopedist but his requests
have been denied or delayed.
underwent surgery on July 10, 2013. Plaintiff complains that
prior to and following the surgery, he was not given a
comprehensive accommodation chrono for special handcuffing to
accommodate his pain, discomfort, suffering and straining to
his left shoulder, arm and elbow. He was given an assistive
device and sling for post-surgery by Dr. K. Lee or Dr. H.
Tate, but he was not given an accommodation post-surgery for
special handcuffing. Plaintiff complains his post-operative
care was handled in an unprofessional manner inconsistent
with CDCR policies. As a result, Plaintiff continues to go
through significant discomfort, pain, suffering, and
informed Dr. H. Tate that Dr. Mehul Taylor had recommended an
MRI of his left shoulder to evaluate and follow up
post-surgery. Plaintiff claims the follow-up appointments
were handled in an unprofessional manner inconsistent with
CDCR policies. Specialty clinic personnel neglected to adhere
to follow-up appointments which further delayed medical
treatment. In addition, Joseph L. McQuirter, D.D.S.,
recommended that Plaintiff be evaluated by a neurologist and
orthopedic surgeon for his shoulder but it was handled in an
unprofessional manner inconsistent with CDCR policies.
seeks compensatory, punitive and nominal damages ...