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Tracye Benard Washington v. K. Harrington

May 24, 2012

TRACYE BENARD WASHINGTON,
PLAINTIFF,
v.
K. HARRINGTON, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On May 20, 2011, Plaintiff Tracye Benard Washington, 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.) Plaintiff's Complaint 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 COMPLAINT

The Complaint names the following Kern Valley State Prison (KVSP) officials as Defendants in this action: (1) Kelly Harrington, Warden; (2) S. Lopez, Chief Medical Officer (CMO); (3) Dr. Akanno; (4) Munga, Registered Nurse; (5) Griutron, Registered Nurse; (6) John Doe #1; and (7) John Doe #2.

Plaintiff alleges the following:

On May 28, 2009, Plaintiff was examined by Nurse Munga because of difficulty breathing and a persistent cough. Plaintiff thought he had the flu; Munga disagreed. Munga measured Plaintiff's vital signs, dispensed over-the-counter medication, and dismissed Plaintiff. (Compl. at 5.) Plaintiff returned to the medical clinic approximately two weeks later because his symptoms persisted. Nurse Griutron examined Plaintiff and attempted to give Plaintiff the same medication again. When Plaintiff explained that the medication had been ineffective, Nurse Griutron stated she would refer Plaintiff to a doctor. (Id. at 5, 6.) Plaintiff was never seen by a doctor pursuant to that referral. (Id. at 12.)

On June 22, 2009, Plaintiff entered the clinic complaining of an inability to breathe. Plaintiff's vitals and oxygen levels were measured. (Id. at 6.) Nurse Griutron examined the results and stated that the referral for a doctor had been submitted and that she would schedule Plaintiff for chest x-rays. (Id. at 7.) The scheduled x-rays never took place because John Doe #2 "fail[ed] to place [P]laintiff on the list as requested by Nurse Griutron." (Id. at 14.) The next day Plaintiff was sent via ambulance to the Central Treatment Center (CTC) because of agonizing stomach pain. Plaintiff was released without examination after stating "that he was feeling better." (Id. at 7.) The following day Plaintiff experienced difficulty breathing, "his sense of smell and taste had dissipated," and he was having night sweats. (Id.) An x-ray revealed that Plaintiff's lungs had filled with fluid, an indication of pneumonia. Plaintiff was sent to an outside hospital where he underwent surgery to remove bacteria from the lungs. A biopsy "confirmed that [P]laintiff was suffering from pneumonia, asthma and extreme weight loss." (Id. at 8.) Plaintiff was prescribed various medications, including the steroid Prednisone, and returned to KVSP. Plaintiff had to pursue John Doe #2 for several days before his prescriptions were filled. (Id. at 8, 14.)

On July 7, 2009, Plaintiff was prescribed nutritional supplements to aid his weight gain and general recovery. One of the John Doe Defendants took several days to fill the prescription and then regularly failed to provide Plaintiff with a full day's supply as prescribed. Medical clinic staff stated that the supply occasionally ran out. (Id. at 9, 14.)

Plaintiff was examined by Dr. Akanno on July 21, 2009, with complaints of persistent cough, joint pain, and muscle cramps. Dr. Akanno prescribed antibiotics and cough syrup, but declined to renew Plaintiff's Prednisone prescription or provide a stronger pain killer. (Id. at 9, 15.) On August 6, 2009, Plaintiff continued to suffer from a cough and was unable to breathe while lying down; he was prescribed antibiotics and Mucinex. Later that day Plaintiff, unable to breathe properly, was sent to an outside hospital. (Id. at 9.) On August 10, 2009, Plaintiff was seen by a doctor for renewed breathing difficulty. Lung afflictions were discovered and Plaintiff was sent to an outside hospital for a second operation. (Id. at 10.) The surgeon stated that Plaintiff's pneumonia had returned because of Dr. Akanno's failure to renew Plaintiff's Prednisone prescription. (Id. at 15.) Plaintiff was returned to KVSP one week later. (Id. at 10.)

Plaintiff filed an inmate grievance on August 30, 2009, requesting a transfer out of KVSP because of inadequate medical care. "Approximately one to two months later," Doctor Akanno told Plaintiff that he was submitting a medical transfer order on Plaintiff's behalf. (Id.) At the end of 2009, the Classification Committee, on Defendant Akanno's and Lopez's recommendations, approved Plaintiff's transfer to California State Prison Los Angeles County (CSPLA). Prison regulations require transfers be carried out within one hundred twenty days of approval. Plaintiff's approved transfer to CSPLA was never carried out. In June or July, 2010, Plaintiff reappeared before the Committee and was approved for transfer to California State Prison Sacramento. (Id. at 11.)

When an inmate enters the medical clinic after filing a health care request, the facility nurse conducts an intake interview. The facility nurse has access to the inmate's medical records including information relating to pre-existing conditions and ongoing treatment. (Id. at 12.) Plaintiff had been diagnosed with, and was receiving medication for, asthma prior to the events at issue. The California Department of Corrections and Rehabilitation (CDCR) has a policy of not housing inmates with respiratory illness at prisons, such as KVSP, in the San Joaquin Valley. (Id. at 13.)

Warden Harrington is responsible for ensuring that inmates are properly housed at KVSP in accordance with all relevant housing factors, including health. CMO Lopez is responsible for the quality of healthcare provided at KVSP. (Id. at 12.)

The Complaint asserts that the Defendants exhibited deliberate indifference to Plaintiff's serious medical needs in violation of his ...


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