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Allen Foster v. Dr. Bhambi

June 4, 2012

ALLEN FOSTER,
PLAINTIFF,
v.
DR. BHAMBI, M.D., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

SECOND SCREENING ORDER ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Doc. 14.) ORDER DENYING REQUEST FOR PRELIMINARY INJUNCTION THIRTY DAY DEADLINE TO FILE SECOND AMENDED COMPLAINT

I. RELEVANT PROCEDURAL HISTORY

Allen Foster ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 20, 2010. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on November 30, 2011, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On January 24, 2012, Plaintiff filed an Amended Complaint, which is now before the Court for screening. (Doc. 14.)

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 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 is required to 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 (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). 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. While factual allegations are accepted as true, legal conclusions are not. Id.

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Id. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF AMENDED COMPLAINT

The events at issue allegedly occurred at Pleasant Valley State Prison in Coalinga, California, where Plaintiff is currently incarcerated, and Bakersfield Memorial Hospital. Plaintiff names as defendants Dr. Brij Bhambi (M.D.), an unnamed hospital trainee, and unnamed members of the Bakersfield Memorial Hospital's administration.

Plaintiff alleges as follows. Plaintiff suffers from a heart condition and had stents implanted in 2003. On December 9, 2004, defendant Dr. Bhambi saw Plaintiff for complaints of chest pain and recommended a mechanical revascularization procedure. Plaintiff did not want the procedure and decided he would never see Dr. Bhambi again and would refuse further appointments with him.

Plaintiff has strong beliefs against body implants and only had the stents implanted in 2003 because of his parents' pleas. Plaintiff refused appointments with Dr. Bhambi and did not agree to have procedures done by him.

Plaintiff saw Dr. Ortiz and told the doctor that he did not have heart problems, his chest pains and other discomforts came from pinched nerves, and all appointments for heart procedures should be canceled until Plaintiff advised him otherwise. Plaintiff continued to refuse to see Dr. Bhambi and canceled appointments with him.

Plaintiff later decided to have his old stents and vessels examined by appointment at Bakersfield Memorial Hospital on September 22, 2006. Prison medical staff told Plaintiff that Dr. Bhambi was no longer contracted by the state prison, because of too many inmate complaints. Plaintiff was scheduled for a Left Heart Catheterization (LHC) to check for blockages. While being prepped for the procedure, Plaintiff unknowingly signed a consent form for Emergency Coronary Artery Bypass Graft Surgery (ECABG), which was performed on him. After the surgery, Plaintiff was seen at the hospital by Dr. Bhambi, at which time Plaintiff requested to be released. Back at the prison, Plaintiff complained to doctors about problems with his legs and pain in his groin and testicles.

Plaintiff later discovered that Dr. Bhambi was the doctor who performed the ECABG on him at the hospital, with the assistance of a hospital student trainee, and one of them accidentally struck a nerve during the procedure, affecting Plaintiff's legs and groin. As a result, Plaintiff continues to suffer. Now, one of the stents implanted by Dr. Bhambi and the trainee is 40% closed, and Plaintiff has constant chest pain.

Plaintiff claims that his rights under the First, Eighth, and Fourteenth Amendments were violated when Dr. Bhambi ignored Plaintiff's refusal to be associated with him, when Dr. Bhambi and the trainee implanted new stents which Plaintiff did not want, and when Dr. Bhambi and the hospital administration allowed a student trainee to assist with the procedure without Plaintiff's written consent. Plaintiff agreed to have an LHC performed only to inspect his old stents and vessels, not to implant more stents. Dr. Bhambi changed the procedure and used a hospital trainee to assist him, under the authority given by the hospital administration.

Plaintiff seeks monetary damages and a preliminary injunction to stop Dr. Bhambi from providing public medical services until this case has been concluded.

IV. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. ยง 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law ...


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