Davila v. Smith

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT AMENDED COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM (ECF No. 10.) OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS

         I. BACKGROUND

         Plaintiff Charles Davila (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 20, 2015. (ECF No. 1.) The Court^[1] screened Plaintiff’s initial complaint and dismissed it with leave to amend. (ECF No. 9.) Plaintiff filed an Amended Complaint on June 25, 2015, which is now before this Court for screening. (ECF No. 10.)

         II. LEGAL STANDARDS FOR SCREENING PRISONER COMPLAINTS

         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).

         “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions, ” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed.R.Civ.P. 8(a). Pursuant to Rule 8(a), 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). “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

         III. ALLEGATIONS IN PLAINTIFF’S AMENDED COMPLAINT

         Plaintiff’s Amended Complaint is asserted against Defendant David G. Smith, a doctor at the Substance Abuse Treatment Facility. Defendant has been treating Plaintiff’s arm injury. Defendant performed surgery on Plaintiff’s arm, which included placing certain hardware in the arm. Plaintiff alleges the hardware is broken and should be removed. Plaintiff continues to suffer pain in his arm. Defendant recommended monitoring the pain. Plaintiff questions Defendant’s competency in failing to correct the problem through multiple surgeries. Attached to the Amended Complaint are medical notes and letters from Defendant, indicating that “I have reviewed his x-rays and also from June 5^th which show the plate to be in satisfactory position and alignment seems to be satisfactory. . . . I would like him to leave the plate in and we will continue to observe his condition but it is too early, in my opinion, to consider plate removal at this time.” (ECF No. 10, p. 15.) Plaintiff includes an x-ray and states that “the x-ray clearly shows the screw already broke off.” (ECF No. 10, p. 16.)

         Plaintiff asserts claims for negligence, intentional infliction of emotional distress, cruel and unusual punishment, and violation of the Americans with Disabilities Act (“ADA”).

         IV. PRIOR SCREENING ORDER

         The Court previously screened Plaintiff’s original complaint, which alleged similar facts and included many if not all of the same exhibits in support of his complaint.

         The Court set forth the legal standards for asserting an Eighth Amendment claim for deliberate indifference to serious medical needs. (ECF No. 9, p. 3-4). The Court then dimissed that cause of action with leave to amend because the facts alleged did not indicate that Defendant acted with deliberate indifference. (ECF No. 9, p. 4-5).

         The Court then reviewed the standards for an ADA claim, and concluded, “Aside from Defendants’ medical treatment decisions of which Plaintiff complains and which are not an appropriate basis upon which to predicate an ADA claim, Plaintiff alleges no facts to show that any named Defendant participated in, or was otherwise responsible for, excluding him from numerous activities, programs, and benefits otherwise available to him. Therefore, Plaintiff fails to state a cognizable claim under Title II of the ADA.” (ECF No. 9, p. 5).

         The Court then gave Plaintiff leave to amend with instructions.

         V. EIGHTH AMENDMENT ...