ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Travon Leon Freeman (Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on December 10, 2009, which is currently before the Court. Doc. 1.
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).
"'Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.'" Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden Hayes, 213 F.3d 443, 447 (9th Cir.2000). "'Additionally, in general, courts must construe pro se pleadings liberally.'" Id. A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and 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, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
Plaintiff is incarcerated at California State Prison, Corcoran and is suing under section 1983 for events which occurred while a prisoner at North Kern State Prison ("NKSP") in Delano California and Corcoran State Prison ("CSP") in Corcoran California. Doc. 1. In his complaint, Plaintiff names the following defendants: 1) Lydia Hynse (Warden at NKSP); 2) Dr. Mehdi Enam (MD at NKSP); 3) R. Sanchez (RN at NKSP); 4) P. Daguman (Nurse Practitioner at NKSP); 5) Dr. Liberstein (Chief Medical Officer ("CMO") at NKSP); 6) Dr. Austria (MD at NKSP); 7) Cindy Beasley (SSA-HCAC at NKSP); 8) Carolyn Florez (HCAS at NKSP); 9) Dr. Soleumani (MD at NKSP); 10) Dr. R. Doyan (MD at NKSP); 11) Dr. R. Down (MD at NKSP); 12) Derrall; 13) Adams (Warden at Corcoran State Prison ("CSP")); 14) Julious (Acting Warden at CSP); 15) Lara Schultz (former dietician at CSP); 16) J. Bondoc (Nurse Practitioner at CSP); 17) T. Cano (AC at CSP); 18) L. Nelson (AC and CMO at CSP);19) J. Obaiza (Health Care Manager at CSP); 20) Dr. Neubarth (MD at CSP). Doc. 1 at 2. Plaintiff seeks compensatory and punitive damages. Doc. 1 at 7.
Plaintiff alleges that on October 17, 2008, Defendant Sanchez failed to list all of Plaintiff's allergies and failed to note that Plaintiff needed a special diet to supplement food items that he should not eat as a result of his serious medical condition. Doc. 1 at 2. Due to Defendant Sanchez's omission Plaintiff's physicians were not on notice of Plaintiff's special dietary and allergy needs. Doc. 1 at 2. Defendant Dr. Mehdi Enam also failed to document that Plaintiff had an extensive allergic problem which necessitates a special diet to maintain a healthy life. Doc. 1 at 2. While at NKSP, on October 21, 2008, Plaintiff informed Defendant Daguman that Plaintiff's legs, feet and ankles swelled as a result of something that was mixed in his meal on Friday evening. Doc. 1 at 2. On October 17, 2009, "she dismissed [Plaintiff's medical concern] as only being D.V.T.*fn1 problems and failed to properly diagnose [Plaintiff]." Doc. 1 at 2.
According to Plaintiff, on November 19, 2008, Defendant Dr. Liberstein failed to give Plaintiff a special diet that would address is allergy condition and acid reflux disease. Doc. 1 at 2. Plaintiff alleges that Defendant Liberstein deliberately failed to accurately record what Plaintiff said of his medical condition, but rather Defendant Liberstein stated that Plaintiff's condition stemmed from playing basketball. Doc. 1 at 2. Plaintiff alleges that on November 25, 2008, Defendant Dr. Austria improperly evaluated Plaintiff's legs and concluded that Plaintiff's problem was D.V.T. despite Plaintiff's repeated assertions that the problem stemmed from an allergic reaction to food. Doc. 1 at 4. Plaintiff says that his medical condition always happens when he consumes certain foods, however, he is repeatedly ignored. Doc. 1 at 4. Defendant Austria ordered Plaintiff to go to an outside hospital to determine whether Plaintiff's condition was "edima, doppler, or clouded blood vessels." Doc. 1 at 4.
On November 25, 2008, Plaintiff was taken to San Joaquin hospital. Doc, 1 at 4. Plaintiff's legs were examined, an ultrasound was performed to evaluate Plaintiff's veins and "doppler vascular flow assistance." Doc. 1 at 4. On November 26, 2008, Larry Menestrina (D.O.) Reported that there was not evidence of D.V.T. of the right lower leg and that there was normal "doppler venous flow, patency, compressibility and augmentation of the deep veins' of the right leg. Doc. 1 at 4.
On November 26, 2008, Defendant Soleuman refused to listen to Plaintiff when Plaintiff tried to explain to Defendant Soleuman that Plaintiff's medical condition was caused by having something mixed with Plaintiff's food on October 17, 2008. Doc. 1 at 4. Defendant Soleuman said "there is not way it could be" and Plaintiff explained that the swelling of the neck, itching, hives, vomiting and stomach pain always happened when Plaintiff has consumed the wrong food and that he needed a permanent medical chrono requiring a special diet. Doc. 1 at 4.
On November 26, 2008, Defendant Soleuman informed Defendant Dr. R. Doyan of Plaintiff's medical complaints, however, Defendant Doyan failed to do anything. Doc. 1 at 4. On December 9, 2008, Plaintiff saw Defendant Daguman who again failed to enforce the diet she required for Plaintiff and did not give Plaintiff a permanent chrono for the special diet. Plaintiff was mislead to believe that his forty-seven day nightmare was over. Doc. 1 at 4.
Plaintiff filed six "sick call slips" which were not properly evaluated by Defendant Liberstein who also on November 19, 2011, refused to properly evaluate Plaintiff and prescribe him a special diet for his serious medical need. Doc. 1 at 5. On February 6, 2009, Plaintiff saw a nurse named Daisy Cena in order to discus his diet , weight loss and two weeks of stomach pains do to Plaintiff eating less food because he was "scared" to eat "mixed food and contaminated food." Doc. 1 at 5. Plaintiff reported that he had been vomiting off and on the past two weeks because he had been subjected to "mixed food" that was dangerous to his health and he ...