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Cecilia Fraher v. Amend Dr. S. Heyne

December 28, 2011

CECILIA FRAHER,
PLAINTIFF,
v.
AMEND DR. S. HEYNE, ET AL., DEFENDANTS.



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

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH LEAVE TO (ECF No. 9)

AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On May 27, 2010, Plaintiff Cecilia Fraher, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 6.) The Court screened Plaintiff's Complaint (ECF No. 1) on October 31, 2011 and determined that Plaintiff stated a single cognizable claim; all other claims were dismissed with leave to amend. (ECF No. 8.) Plaintiff was given leave to amend the complaint or notify the Court of her desire to proceed only on her cognizable claim. (Id.) Plaintiff elected to file a First Amended Complaint. (ECF No. 9.) It is now before the Court for screening.

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

The First Amended Complaint alleges the following Central California Women's Facility ("CCWF") officials violated Plaintiff's Eighth Amendment rights: (1) Dr. Steven Heyne, Chief Medical Officer; (2) Dr. Robert Mitchell, primary care physician; and (3) R.N. Le. Plaintiff alleges the following:

On April 28, 2009, Plaintiff met with Dr. Bommer, a cardiologist, for her biannual appointment. Dr. Bommer noted in his report that Plaintiff had been experiencing viral symptoms for the previous ten days. (Compl. at 4.) Two days later Plaintiff saw Dr. Mitchell for a follow up appointment. Plaintiff informed Dr. Mitchell that she was experiencing "difficulty breathing, dry cough, back/shoulder pain, night fevers and loss of appetite." (Id.) In response, Dr. Mitchell discussed swine flu and menopause. Plaintiff pointed out that she underwent a full hysterectomy fifteen years prior and that this information was reported in her medical file. Dr. Mitchell prescribed cough medicine. (Id.)

Between May and June 5, 2009, Plaintiff saw R.N. Le at least three times. Each time Le refused to provide an emergency referral and insisted that Plaintiff was experiencing menopause in spite of the fact that Plaintiff's file clearly recorded her 1994 hysterectomy. (Id.)

On June 5, 2009, Plaintiff reported to Dr. Mitchell that her symptoms had escalated since their April 30, 2009 appointment. Dr. Mitchell again refused to test for swine flu but agreed to a urinalysis to be conducted by R.N. Le. The urinalysis detected blood in Plaintiff's urine; R.N. Le suggested Plaintiff was menstruating, again in spite of the hysterectomy. (Id.) Dr. Mitchell then prescribed "'An intense combination of Anti-biotic'" for two weeks and scheduled a follow up appointment in two days. (Id.)

By June 26, 2009, Plaintiff's antibiotics had run out, her symptoms intensified, and Dr. Mitchell had not conducted a follow up appointment. Plaintiff filed an inmate medical appeal reporting her circumstances. On July 7, 2009, Dr. Mitchell saw Plaintiff in response to the inmate appeal. He ordered a chest x-ray, referred Plaintiff to cardiology, and scheduled a follow up appointment in seven days. (Id.)

Plaintiff received the x-ray on July 10, 2009. On July 18, 2009 Plaintiff was taken to the CCWF emergency room after blacking out in her cell. Plaintiff was transported to Madera Community Hospital's intensive care unit in critical condition. Plaintiff's lungs were drained of blood at the hospital. (Id.) On July 20, 2009, Dr. Mitchell reviewed Plaintiff's July 10, 2009 x-rays "and deems 'Everything with in normal limits, no follow-up is required.'" (Id.) At the time Dr. Mitchell made this conclusion "Plaintiff lay dying" in Madera Community's intensive care. (Id. at 5.) Four days later Plaintiff was admitted to the hospital with "respiratory failure, anemia, congestive heart failure and aortic regurgitation." Her condition was categorized as "'poor'" and she was "in danger of 'sudden cardiac death.'" (Id. at 4.)

Plaintiff was sent to U.C. Davis for emergency open-heart surgery on July 25, 2009. The damage to Plaintiff's heart was temporarily repaired on August 3, 2009. "Reports attribute destruction of valves was a direct result of 'unknown infection - not dental.' This infection is the same one reported to Defendants Mitchell, M.D. and R.N. Le in April but dismissed without diagnostic testing as menopause." (Id. at 5.)

Dr. Heyne signed first and second level written responses to Plaintiff's June 26, 2009 inmate appeal, endorsing the care provided by Dr. Mitchell on July 7, 2009. (Id.) "Plaintiff was forced to file numerous appeals beginning August 23, 2009 in an attempt to obtain post-operative care, medications and follow-up visits to U.C. Davis cardiology all ...


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