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Michael Mcneil v. Lvn Hayes

March 11, 2012

MICHAEL MCNEIL,
PLAINTIFF,
v.
LVN HAYES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FIRST SCREENING ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND REQUIRING PLAINTIFF TO EITHER FILE THIRD AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EIGHTH AMENDMENT CLAIMS AGAINST DEFENDANTS HAYES, RAMAN, SOTO,

BYERS, DOE, AND ROTMAN (Doc. 17) THIRTY-DAY DEADLINE

First Screening Order

I. Screening Requirement and Standard

Plaintiff Michael McNeil, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 23, 2010. Pending before the Court is Plaintiff's second amended complaint, filed on June 28, 2011.*fn1

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 556 U.S. 662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Claims

A. Summary of Allegations*fn2

Plaintiff, who is currently incarcerated at California State Prison-Corcoran, brings this action against medical staff at the California Substance Abuse Treatment Facility (CSATF) for allegedly violating his rights under the First and Eighth Amendments of the United States Constitution.

Plaintiff names Chief Medical Officer Enenmoh; Doctors Rotman and Raman; Licensed Vocational Nurse P. Hayes; Physician's Assistant T. Byers; Registered Nurses Soto, Guiteras, Villasno, and Capra; Health Care Appeals Coordinator G. Miller; and an unspecified number of Does as defendants. Plaintiff seeks damages and injunctive relief in the form of proper diagnostic testing and treatment for pain.

1. Defendants Hayes and Raman

Plaintiff was incarcerated at CSATF from August 2000 to September 2009. He suffers from degenerative disc disease, and he has multiple disc herniation in his neck and lower back with spinal compression. As a result of his medical condition, Plaintiff suffers from severe pain and an anterior cervical discectomy was recommended by a neurosurgeon, although Plaintiff apparently declined to consider surgery. (E.g., Comp., Ex. 1, p. 5.)

Plaintiff's claims arise from events commencing on March 23, 2009, when he went to the medical clinic for his morning dose of the pain medications morphine and gabapentin. When Defendant Hayes handed Plaintiff his medication, he took it. Plaintiff opened his mouth and displayed his empty cup in compliance with the requisite visual inspection. Defendant Hayes became belligerent and ordered Plaintiff to run his fingers around the inside of his mouth, which Plaintiff refused to do because it was in contravention of applicable regulations and because he believed it to be unsanitary given that his hands had not been washed. Defendant Hayes threatened to sound her alarm if Plaintiff did not comply. Plaintiff again refused, citing to the applicable procedure that was to be followed if Defendant believed Plaintiff had "cheeked" his medication.

Defendant Hayes sounded her alarm, and Plaintiff had to lie on his stomach, at which time he was handcuffed, taken to the program office, and strip searched. No contraband was found, and Plaintiff was placed in a holding cell for 90 minutes and released.

When Plaintiff returned to the clinic later in the day for his 12:00 p.m. dose of medication, Defendant Hayes informed him that she had told Defendant Raman, the physician on duty that day, that she believed Plaintiff had cheeked his medication and she requested his morphine be discontinued.*fn3 Defendant Raman agreed and signed a discontinuation order, in contravention of the applicable procedures, which required that Plaintiff be interviewed and that any suspicion regarding the failure to take prescribed medication be reported to the prescriber of the medication. Defendant Hayes also informed Plaintiff that she was issuing him a serious rules violation report (CDCR-115) for disobeying a direct order, which Plaintiff alleges she lacked the authority to do as a contract employee with the prison.

Plaintiff asked Defendant Hayes if she was a registered nurse or a licensed vocational nurse -- information he wanted to file a complaint against her with the licensing board. Defendant Hayes responded that she was a licensed vocational nurse, but she would not tell Plaintiff whether she was a contract employee or a state employee; she sarcastically asked Plaintiff if he was a man or a mouse. Refusing to be bated, Plaintiff left the clinic.

Later, Plaintiff was informed by other inmates that Defendant Hayes disparaged him after he left, calling him "a piece of shit" and "a child molester." (2nd Amend. Comp., ¶30.) Plaintiff also alleges that Defendant Hayes tried to get Correctional Officer Fitzpatrick, who was stationed at the clinic and standing next to her, to place Plaintiff in administrative segregation for threatening her. Fitzpatrick, however, declined to take action and stated he did not observe Plaintiff making any threats.

Plaintiff alleges that Defendant Hayes has a history of retaliating against inmates she does not like by falsely accusing them of cheeking their meds. Plaintiff further alleges that Defendant Raman failed to review his medical file before discontinuing his pain medication and Raman was not Plaintiff's primary care physician, and thus lacked knowledge of Plaintiff's medical history and the extent to which Plaintiff's medical issues affected his major life activities. Plaintiff alleges that as a result of Defendant Raman's actions, he went without pain medication for thirty-five days and suffered from withdrawal, extreme pain, sleeplessness, and increased mobility impairment. Plaintiff thereafter filed an inmate appeal against Defendant Hayes.

On March 26, 2009, Plaintiff gave another inmate a request for medical services form to hand in for him because he feared retaliation from Defendant Hayes if he handed it in himself. Plaintiff was later informed that Defendant Hayes read the form, laughed, crumpled it up, and threw it on the ground.*fn4 Plaintiff alleges that as a result of the morphine discontinuation, he suffered initially from pain, perspiration, a runny nose, and agitation, and then from more severe pain, hyperactivity, rapid breathing, fever, tremors, muscle twitches, hot and cold flashes, loss of sleep, muscles aches, and diarrhea.

2. Defendant Villasno

On March 24, 2009, Plaintiff was seen by Defendant Villasno, a nurse at the clinic. Plaintiff told Defendant Villasno about his pain and withdrawal symptoms following the discontinuation of his medication. Defendant Villasno acted with understanding, and she went into the next room and asked Defendant Rotman, a doctor, if he could see Plaintiff and do something about his pain and discontinued medication. Plaintiff overheard Defendant Rotman refuse to see him and tell Defendant Villasno that he had to wait for the resolution of the rules violation report issued by Defendant Hayes. Defendant Villasno ...


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