United States District Court, E.D. California
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
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 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.)
LEGAL STANDARDS FOR SCREENING PRISONER COMPLAINTS
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. §
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)).
ALLEGATIONS IN PLAINTIFF’S AMENDED COMPLAINT
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 5th 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.)
asserts claims for negligence, intentional infliction of
emotional distress, cruel and unusual punishment, and
violation of the Americans with Disabilities Act
PRIOR SCREENING ORDER
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.
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).
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).
Court then gave Plaintiff leave to amend with instructions.
EIGHTH AMENDMENT ...