The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO FILE FIRST AMENDED COMPLAINT (Doc. 1) FIRST AMENDED COMPLAINT DUE IN THIRTY DAYS
Plaintiff Jamisi Jermaine Calloway ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 17, 2011.
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, 127 S.Ct. 1955, 1964-65 (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. Id. at 1949.
II. Summary of Plaintiff's Complaint
Plaintiff is an African American prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). He is housed at Kern Valley State Prison in Delano, California. The events giving rise to the claims at issue in this action allegedly occurred while Plaintiff was housed at the California Substance Abuse Treatment Facility ("CSATF") at Corcoran State Prison ("CSP"). Plaintiff names A. K. Scribner, CSATF Warden; CDCR Chief Medical Officer; Unknown Medical Care Providers; D. G. Adams, CSP Warden; CDCR; Gambro HealthcareDavita Hemodialysis Clinic ("Gambro Clinic"); Richard Turner, Gambro Clinic CEO; Jenny Porter, Gambro Clinic Regional Director; and Doctor Chen, Gambro Clinic Nephrologist. Plaintiff seeks money damages and injunctive relief.
Plaintiff alleges the following: Prior to 2002, Plaintiff was diagnosed with end stage renal failure. He requires five hours of hemodialysis (dialysis) three days per week. Compl. p. 9:14-17. On or about August 14, 2001, Plaintiff was transferred from San Quentin State Prison to CSATF for hemodialysis and care. Compl. pp. 10:25-11:4. From August 14, 2001 to December 6, 2002, CDCR, CSATF, and Warden Scribner took no actions to arrange for hemodialysis treatment, adequate medications on time or an adequate renal diet. CDCR and CSATF also took no action for Plaintiff to receive "a permanent access" and removal of a temporary shunt. On December 6, 2002, Plaintiff was transferred from CSATF to CSP for hemodialysis treatment. As CSP was unable to provide hemodialysis treatment, medication or medical attention, Plaintiff was sent to Gambro Clinic for treatment. Dr. Chen, nephrologist at Gambro Clinic, never referred Plaintiff for a transplant or for "permanent access" and removal of the temporary shunt.
Plaintiff alleges that while he was being treated from December 2002 to April 2006, none of the defendants, including the CEO and Regional Director of the Gambro Clinic, arranged for a kidney transplant evaluation, adequate dialysis, adequate medications, adequate renal diet, "a permanent access" and removal of a temporary shunt.
Plaintiff also alleges that at some point, state correctional officers damaged his access graft, which significantly impaired its functioning, by cuffing him behind the back. For several months, his blood could not be adequately cleansed in a normal dialysis session. He suffered frequent bouts of fever, chills, nausea, vomiting, diarrhea, and lethargy because the toxins could not be filtered through the temporary shunt. Compl. p. 16:1-18. At some point in 2002, the damaged shunt was "snatch[ed] out in a cell fight with another inmate." Plaintiff was sent for another shunt instead of having a permanent access place under the skin in his arm or leg. After being denied a permanent access, Plaintiff was sent back to prison without any dialysis until he became very ill. Subsequently, Plaintiff required a new access shunt to be placed in his chest. Compl. pp. 16:26-17:9.
At some point in 2002, Plaintiff advised Dr. Chen that he needed a permanent access. Defendants Dr. Chen, Richard Turner and Jenny Porter did not arrange for Plaintiff to have a new permanent access or a kidney transplant evaluation. Compl. p. 17:10-27.
At some time, Plaintiff became ill and was admitted to Doctor's Medical Center with a high fever, chills, nausea, vomiting and an infection in his chest access shunt. He remained hospitalized for four days. At some other point, he was hospitalized again at Doctor's Medical Center with hyperkalemia, hypertension, and an abnormal electrocardiogram. He was provided emergency dialysis and had surgery to implant a new shunt access in his chest. He remained hospitalized for twelve days. Compl. p. 18:1-11. At another point, he was hospitalized at the Mt. Diablo Medical Center after arriving via ambulance in a "delirious and disoriented state," with a fever, sepsis and a grossly infected access shunt with abscess formations. He received emergency dialysis, treatment for his infection and surgical resection of the infected shunt access. He remained hospitalized for fourteen days. Compl. p. 18:12-20.
Plaintiff alleges that he was hospitalized several times while in custody between December 6, 2002 to April 2007 for infections to his shunt. Between April 2006 and July 2007, Plaintiff was transferred to the California Medical Facility for hemodialysis and adequate medical care. He was hospitalized again for an infected shunt access in his chest and referred for a permanent access in his left upper arm and a temporary shunt replaced on his chest. He was denied a permanent access and a kidney referral transplant evaluation. Compl. pp. 18:23-19:12. Plaintiff alleges that between August 14, 2001 and 2006, Defendants CDCR, Scribner, Adams, Gambro Clinic, Richard Turner, Jenny Porter and Dr. Chen deliberately neglected his serious medical needs. Compl. p. 19:12-21.
Plaintiff asserts causes of action for violations of the Eighth Amendment, the Americans with Disabilities Act and ...