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John D. Gann, A.K.A. Jennifer Gann v. Arnold Schwarzenegger

December 13, 2010

JOHN D. GANN, A.K.A. JENNIFER GANN,
PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

(ECF No. 6)

COMPLAINT DISMISSED WITH LEAVE TO AMEND SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff John D. Gann, a.k.a. Jennifer Gann ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff originally filed this action on September 14, 2009. (ECF No. 1.) She*fn1 filed an Amended Complaint and consented to Magistrate Judge jurisdiction on October 5, 2009.

(ECF Nos. 6 & 4.) No other parties have appeared in this action.

The Plaintiff's Amended Complaint is now before the Court for screening. For the reasons set forth below, the Court finds that it fails to state a claim upon which relief may be granted.

II. SCREENING REQUIREMENTS

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 must 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, 129 S.Ct. 1937, 1949 (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 that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

III. SUMMARY OF COMPLAINT

A. Causes, Defendants and Relief Sought

Plaintiff brings this action for violations of her rights under the Eighth Amendment of the United States Constitution and the California Constitution and also asserts state law claims for medical malpractice/professional negligence.

Plaintiff names the following individuals as Defendants: Arnold Schwarzenegger, Governor of California; James Tilton, Director of CDCR; James A. Yates, Warden of Pleasant Valley State Prison ("PVSP"); Bill Lockyer, Attorney General for California; R.N. Bond, Registered Nurse at PVSP; MTA Chapman, Medical Technical Assistant at PVSP; MTA Vaughn, Medical Technical Assistant at PVSP; Sheila Deville, Registered Nurse at PVSP; C. Macklin, R.N. at PVSP; James Richards, Medical Doctor at PVSP; Mario Deguchi, Radiologist at PVSP; Dr. Wolf, Medical Doctor at PVSP; Sukhit Takhar, Medical Doctor at Coalinga Regional Medical Center; Wilbur Suesberry, Ear, Nose, and Throat Specialist at Delano Regional Medical Center with the Colonial Medial Group; Sonia Ramirez-Seifert, Medical Doctor at PVSP; Dr. Jameson, Medical Specialist; Dr. Phi, Medical Doctor at PVSP; Dr. Ali, Medical Doctor at PVSP; and John Does 1 through 10, Medical Staff at PVSP and CDCR employees.

Plaintiff sues all named Defendants in their personal and professional capacities. She seeks declaratory relief, preliminary and permanent injunctions, compensatory and punitive damages, a jury trial, and fees and costs.

B. Valley Fever and Hepatitis

Plaintiff alleges the following: On September 18, 2005, Plaintiff began exhibiting flu- like symptoms. Between September 30 and October 3, 2005, she made multiple verbal and written "sick call" requests to Defendants Chapman and Vaughn. On October 3, 2005, Plaintiff again notified prison officials that she needed medical attention. Defendant Vaughn evaluated her and returned her to her cell. The following day, October 4, Plaintiff became unconscious, fell to the floor, and injured herself. Her cellmate notified prison staff. Defendant Bond responded, took Plaintiff to the medical facility, and placed her in a holding cell where she was evaluated by Defendant Deville. After some delay, Plaintiff was examined by Defendant Richards and he ordered tests and x-rays, prescribed medication, and transferred Plaintiff to the Correctional Treatment Center ("CTC") emergency room.

After being examined at CTC, Plaintiff was told by the emergency room doctor that she had Valley Fever. However, because Defendant Deguchi found no acute disease process reflected in her x-rays, Plaintiff was ordered back to her cell by Defendant Wolf.

On October 18, 2005, Defendant Macklin evaluated Plaintiff and, noting the Valley Fever diagnosis and "nagging cough," renewed Plaintiff's medication. On October 19, 2005, Defendant Macklin told Defendant Ali that the Valley Fever test was negative, indicating no further medication was necessary.

Plaintiff's symptoms persisted. On October 27, 2005, Defendant Wolf ordered another test for Valley Fever. Plaintiff tested positive. On March 28, 2006, Plaintiff was examined by Defendant Ramirez-Seifert. Defendant Ramirez-Seifert noted that Plaintiff had been diagnosed with Hepatitis C and had been approved for Pegasys treatment, but failed to note Plaintiff's Valley Fever diagnosis. She ordered several other medications for Plaintiff as noted by Defendant Bond.

On July 13, 2006, Plaintiff's medication was changed by Defendant Jameson. On July 28, 2006, Plaintiff was examined by Defendant Phi who discontinued her Pegasys treatment prematurely, prescribed medication to treat Plaintiff's Valley Fever, and recommended a two-week follow up appointment, that apparently never occurred.

C. Nasal Impairment

On February 5, 2006, Plaintiff was admitted to the emergency room at Coalinga Regional Medical Center with a broken nose. After a four hour delay, she was evaluated by Defendant Takhar, given medication for the pain, and returned to PVSP in severe pain. On May 17, 2006, Plaintiff was examined by Defendant Suesberry at the Delano Regional Medical Center. Defendant Suesberry found that Plaintiff had a deviated ...


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