The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
SECOND SCREENING ORDER ORDER FOR PLAINTIFF TO EITHER (1) FILE A SECOND AMENDED COMPLAINT OR (2) NOTIFY THE COURT OF HIS WILLINGNESS TO PROCEED ONLY ON THE CLAIMS FOUND COGNIZABLE BY THE COURT THIRTY DAY DEADLINE
I. RELEVANT PROCEDURAL HISTORY
Kelvin X. Singleton (plaintiff) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 18, 2008. (Doc. 1.) On November 18, 2008, the court screened plaintiff's complaint and issued an order requiring plaintiff to amend the complaint to comply with Federal Rule of Civil Procedure 18(a). (Doc. 12.) On December 9, 2008, plaintiff filed an amended complaint, which is now before the court for screening. (Doc. 14.)
II. SCREENING REQUIREMENT
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).
III. SUMMARY OF COMPLAINT
Plaintiff is currently incarcerated at Kern Valley State Prison (KVSP) in Delano, California, where the events at issue in this action allegedly occurred. Plaintiff names as defendants A. Hedgepath (Warden), S. Lopez (Chief Medical Officer), A. Youssef (Acting Chief Medical Officer), M. Ali (Senior RN), M. Wright-Pearson (Senior RN), Dr. A. Akanno, Dr. Qamar, Dr. Vasquez, and John/Jane Doe (Specialty Clinic Administrator). All of the defendants are employees of the California Department of Corrections and Rehabilitation (CDCR) who were working at KVSP at the time of the events at issue.
Plaintiff makes the following allegations.
A. Medical Care for Plaintiff's Eye Condition
On April 11, 2006, plaintiff was transferred from Lancaster State Prison to KVSP with pre-existing medical conditions, including glaucoma, refractory error, and chronic lower back pain due to degenerative disc disease, bulging disc, and lordosis. Plaintiff notified medical staff of his medical conditions and showed them chronos from the sending prison.
On May 2, 2006, plaintiff filled out a medical form requesting to have his eyes checked and his broken glasses replaced, stating that his eyes were hurting and he had headaches. In July 2006, plaintiff was seen by an optometrist and fitted for glasses. When plaintiff requested that his ocular pressure be checked due to his headaches and hurting eyes, the optometrist stated he could not perform such a test because the prison did not have the necessary tools. Plaintiff contends that his pressure should be checked every ninety days.
On September 1, 2006, plaintiff met with Dr. Akanno and complained that his left eye was very painful and had been swollen for three weeks. Dr. Akanno filled out a specialty request as "urgent" for plaintiff to be seen by an eye specialist. However, Acting CMO Youssef denied the referral, and plaintiff was never seen by a specialist regarding the eye pain.
On October 28, 2006, after suffering continual pain and some lost vision in his left eye, plaintiff again submitted a request to be seen by an opthamologist. Plaintiff's eye pressure had not been checked for nine months.
On November 28, 2006, as a result of Youssef's denial of the September 1, 2006 referral, Dr. Akanno referred plaintiff to optometry to have his eye pressure checked.
On February 13, 2007, plaintiff was seen by an optometrist and again fitted for glasses. Plaintiff explained about the pain in his eye and vision loss and asked if his eye pressure could be checked. The optometrist stated that he did not have the equipment to check it. The optometrist referred plaintiff to the opthamologist, who is the specialist for glaucoma and other eye disease, but plaintiff was never scheduled and seen by the specialist.
On March 19, 2007, plaintiff filed an emergency appeal complaining of his medical problem, including how Youssef rejected Dr. Akanno's initial referral to be seen for eye pain and vision loss. The appeal was not processed as an emergency appeal as it should have been. On April 21, 2007, M. Ali, RN, interviewed plaintiff and told plaintiff that if he withdrew the appeal, Ali would ensure that plaintiff would be seen within thirty days by an opthamologist. Plaintiff withdrew the appeal in good faith. Both defendants Ali and Wright-Pearson, RNs, agreed to these terms and signed off on the grievance. However, plaintiff was never scheduled or seen as agreed upon.
On July 5, 2007, plaintiff re-submitted the withdrawn appeal, alleging deception by defendants Ali and Wright-Pearson and explaining that he had partial vision loss in his left eye. Plaintiff's criminal appeal attorney wrote a letter to defendants Warden Hedgepath and CMO Lopez regarding plaintiff's medical problems with his eye and back. The letter urged them to abide by the Plata ruling and ensure plaintiff received the needed medical care. Hedgepath and Lopez wrote the attorney back, assuring him that plaintiff was receiving adequate medical care. However, plaintiff was not receiving adequate medical care.
On August 31, 2007, plaintiff was finally examined by the specialist who administered a series of eye tests. Plaintiff discovered through discussion with the doctor and the results of the visual field test that plaintiff has a partial loss of vision in his left eye. The specialist requested that plaintiff be returned in six weeks for follow-up care, but plaintiff was never returned to the specialist and has not had his pressure checked to see if the glaucoma is worse.
Plaintiff contends that each defendant, including Hedgepath, Lopez, Youssef, Ali, Wright-Pearson, and John/Jane Doe knew of plaintiff's medical condition and the risk of vision loss in his left eye if treatment was denied or delayed and he was not seen by a specialist in a timely manner. The cause of the partial vision loss is not known because plaintiff has not been examined again by the opthamologist.
Hedgepath, Lopez, and Youssef were responsible for ensuring that the specialty clinic provided timely appointments, but they failed to do so. Ali, Wright-Pearson, and John/Jane Doe were to ensure that plaintiff was scheduled, because Doe was the scheduler and Ali and Wright-Pearson assured plaintiff that he would be seen within thirty days of withdrawing his grievance.
As a result of inadequate medical care, plaintiff suffered from serious pain and headaches, emotional distress, and permanent loss of partial vision in his left eye.
B. Medical Care for Plaintiff's Lower Back
On October 2, 2006, plaintiff filed an Accommodation Request on CDCR Form 1824 requesting medical care, to have his medical chronos renewed, pain medication and/or possible surgery to relieve pain in his lower back. The Form 1824, equivalent to a CDCR-602 form, was filed after plaintiff had filed numerous medical requests to have the chronos renewed and treatment for his back. On April 17, 2007, the appeal was denied at the final level of review without relief.
On April 11, 2007, plaintiff was examined by orthopedic specialist Dr. Lewis. Lewis prepared a report recommending plaintiff be seen by a pain management specialist, Dr. Langlos, and be issued a lower bunk chrono. Lewis recommended that plaintiff be returned to his office in six weeks for a follow-up ...