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Adams v. Vazquez

April 8, 2009

RONALD ADAMS, PLAINTIFF,
v.
P.L. VAZQUEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DISMISS ALL CLAIMS (Doc. 19)

I. FINDINGS

A. Procedural History

Ronald Adams ("Plaintiff") is a state prisoner proceeding pro se. The Court granted Plaintiff's motion to proceed in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on May 24, 2005. (Doc. 1.) Prior to screening, Plaintiff filed the First Amended Complaint. (Doc. 14.) The First Amended Complaint was screened and dismissed with leave to amend. (Doc. 18.) On July 21, 2008, Plaintiff filed the Second Amended Complaint which is presently before the Court. (Doc. 19.)

B. 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).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

C. Plaintiff's First Amended Complaint

Plaintiff is currently a state prisoner at California State Prison Sacramento ("SAC") in Represa, California. Plaintiff was formerly imprisoned at California State Prison, Los Angeles County ("LAC") in Lancaster, California and Wasco State Prison ("WSP") in Wasco, California -- where the acts he complains of occurred.

Plaintiff names the following defendants: WSP Warden P.L. Vazquez; Health Coordinator C. Gipson; Health Care Manager M. Nonger; Dr. Shen; Chief Medical Officers Dr. Attygalla and J. Fitter; Dietician J. Ng; Appeal Examiner P. Enriquez; California Department of Corrections and Rehabilitation Secretary James Tilton; and Dr. P. Fortaleza. Plaintiff seeks monetary damages and injunctive relief.

Plaintiff alleges that he suffers from diabetes, a heart ailment (with history of a heart attack), hypertension, and a food allergy to peanuts. For over five years prior to the times at issue in this case, he had not eaten red meat at all because of the dangers it posed to his heart and hypertension conditions. (Doc. 19, pg. 10.) As a result, he required oral medication for his diabetes and medical chronos (as written by Dr. McArthur at LAC) to be allowed to obtain two lunch sacks each day so that he could discard any items containing meat and/or peanut butter, while eating double amounts of the remaining items. Plaintiff claims that, while at LAC, he filed a medical inmate appeal and was examined at the first level by Dr. Attygalla. (Id. at pg. 6.) Plaintiff explained to Dr. Attygalla that he needed to have double lunch chronos to have extra food on hand to eat since his diabetic medications could cause his blood sugar levels to drop dangerously, which could cause diabetic shock and death. Plaintiff's appeal was partially granted in as much as he had seen Dr. Attygalla. Dr. Attygalla stated that Plaintiff did not require an extra lunch or nourishment bag because he was not dependent on insulin. (Id.) Plaintiff appealed to Staff Physician Dr. P. Fortaleza and CMO J. Fitter at the second level. However, while Plaintiff's second level appeal was pending, he was transferred to WSP. (Doc. 19, pg. 6.) Dr. Fortaleza and Fitter explained that Plaintiff could address his concerns at WSP. (Id.) After transfer to WSP, Plaintiff's appeal was sent to the Director's Level and assigned to Appeals Examiner P. Enriquez -- who partially granted Plaintiff's appeal, ordering that he be evaluated at WSP to determine whether chronos he had received for peanut allergy and double lunches (among others) should be renewed. In April of 2004, WSP medical staff refused to perform peanut allergy tests and WSP staff began to "press" Plaintiff about his two lunch chrono. (Id. at pg. 7.) At WSP, Plaintiff met with Dietician Ng who said she would make a request that his double lunch chrono be renewed, but it was not renewed. (Id. at pg. 9.) Plaintiff filed an grievance at WSP seeking the two lunch chronos. Plaintiff again met with Dietician Ng who understood and indicated she would recommend a two lunch chrono and a no peanut butter chrono. Dr. Shen thereafter advised that he would rewrite the double lunch chrono, and confirmed that Plaintiff's tests came back as allergic to peanut products. (Id. at pg. 12.) In that first level response to Plaintiff's appeal at WSP, C. Gipson failed to write everything that Ng wrote in her notice or report and erroneously reported that Dr. Shen did not issue an extra lunch chrono as recommended by Ng. (Id.) At the second level, Plaintiff's appeal was answered by M. Songer who erroneously wrote that no extra sack lunch was authorized and that Dr. Shen had required monitoring of Plaintiff's weight. (Id. at pp. 12-13.) P. Enriquez was also assigned to the examiner on this appeal at the third level. P. Enriquez altered Plaintiff's statements and issued a decision that no medical documentation was provided to show extra food was granted.

(Id.) Further, P. Enriquez errantly failed to investigate Plaintiff's case and erroneously noted that Dr. Shen wanted to monitor Plaintiff's weight when Dr. Shen had never weighed Plaintiff. P. Enriquez denied Plaintiff's appeal at the Director's Level. (Id. at pp. 13-14.) Plaintiff stopped taking his diabetes medication because he was unable to obtain two lunches or other diabetic nourishment snack. (Id. at pg. 16.)

Plaintiff fails to state a cognizable claim against any defendants. Since Plaintiff was given the applicable legal standards in the Court's screening order it appears Plaintiff is unable to present factual allegations to state a cognizable claim.*fn1 Plaintiff's Second Amended Complaint suffers from a ...


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