United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS FEDERAL
CLAIMS WITH PREJUDICE FOR FAILURE TO STATE A CLAIM AND
DISMISS STATE CLAIMS WITHOUT PREJUDICE FOR LACK OF
JURISDICTION(ECF NO. 1) OBJECTIONS DUE WITHIN TWENTY-ONE (21)
Bodnar (“Plaintiff”) is a prisoner proceeding
pro se and in forma pauperis with this
civil rights action pursuant filed to 42 U.S.C. § 1983.
Plaintiff filed the Complaint commencing this action on June
20, 2017, in the Central District of California. (ECF No. 1).
It was transferred to this District on June 22, 2017. (ECF
alleges that multiple prison primary care physicians and
medical professionals failed to treat his pain and worsening
symptoms related to a surgery in 2006. Although they
committed to refer him to an orthopedic surgeon, they
repeatedly failed to do so. When Plaintiff finally saw the
orthopedic surgeon, they failed to allow him to see the
orthopedic surgeon again after various tests were taken.
Court has reviewed the complaint and recommends that it be
dismissed because it fails to state a violation of the
constitution because what Plaintiff describes amounts to
negligence, and not deliberate indifference as that term is
used in the relevant case law.
has also asserted state law claims for professional
negligence and medical malpractice. The Court recommends
declining to exercise jurisdiction over these claims in light
of the dismissal of Plaintiff's federal claims (Plaintiff
may file a lawsuit in state court regarding these state law
claims if he so chooses).
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). As Plaintiff is proceeding in forma
pauperis (ECF No. 7), the Court may also screen the
complaint under 28 U.S.C. § 1915. “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.
complaint is required to 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 Atlantic 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). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF COMPLAINT
alleges that, in 2006, he had surgery placing metal plates
and screws in his left shoulder. In 2009, Plaintiff was
incarcerated at Ironwood State Prison (“ISP”). In
2012, Plaintiff began to experience sharp pain inside his
left shoulder and numbness in digits 4 and 5 of his left
hand. Plaintiff's Primary Care Physician
(“PCP”) ordered x-rays. After seeing them, the
PCP put in a Request for Services (“RFS”) for
Plaintiff to see an orthopedic surgeon. Plaintiff went to
Riverside Regional Medical Center, and the orthopedic surgeon
ordered tests to be done and then asked for Plaintiff to
Plaintiff was then transferred to Valley State Prison
(“VSP”). Defendant Dr. Maddax was Plaintiff's
first PCP upon arrival at VSP. Plaintiff told Maddax about
his shoulder injury. Dr. Maddaz stated she would put in an
RFS for Plaintiff to see an orthopedic surgeon close to VSP.
waited 90 days and then asked about the referral. It took
another 3 weeks for Plaintiff to see Dr. Maddax. When he did,
Dr. Maddax said she had not done the RFS, but now would do
so. Dr. Maddax did not perform any tests herself or try any
treatment, despite Plaintiff explaining that the pain inside
his left shoulder was getting more frequent, as well as the
numbness and tingling in digits 4 and 5 of his left hand.
Plaintiff waited and then put in a medical request. After
several weeks, Plaintiff saw Dr. Maddax. Again, she had not
issued the RFS. This scenario happened several times. Dr.
Maddax would say that she would issue an RFS for an
orthopedic surgeon and then failed to do it. Dr. Maddax never
provided any care (although she kept Plaintiff's pain
medication where it was before 2012).
approximately a year, Defendant Dr. Johnson became
Plaintiff's PCP. Plaintiff explained the medical
complaints, the recommendation to see the orthopedic surgeon
in order to determine the cause, and how Dr. Maddax kept
saying she would do an RFS. Dr. Johnson ordered x-rays. Once