Aguilar v. Holland

          FINDINGS AND RECOMMENDATION DISMISSING PLAINTIFF'S THIRD AMENDED COMPLAINT WITH PREJUDICE [ECF No. 26] THIRTY-DAY DEADLINE

          DENNIS L. BECK, UNITED STATES MAGISTRATE JUDGE

         I. Background

         Plaintiff 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.

         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).

         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 (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.

         II.Discussion

         A. Facts

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 emotional distress.

         Plaintiff 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.

         Plaintiff seeks compensatory, punitive and nominal damages ...