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Richard Kimbro v. Chen

July 12, 2012

RICHARD KIMBRO,
PLAINTIFF,
v.
CHEN, ET AL., DOC. 1 DEFENDANTS.



ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED THIRTY-DAY DEADLINE

Screening Order

I. Procedural History, Screening Requirement, and Standard

On June 13, 2011, Plaintiff Richard Kimbro ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging failure to provide morphine, methadone, and treat his kidney stone condition from 2005 through 2011. Compl. at 7 of Part 1 & 53, 70-71, 79 of Part 2 of Complaint, Doc. 1. Plaintiff names forty-seven (47) Defendants, who were employed by the Appeals Branch of California Department of Corrections ("CDCR"); Kern Valley State Prison ("KVSP"); Salinas Valley State Prison ("SVSP"); Mule Creek State Prison ("MCSP"); High Desert State Prison ("HDSP"); and Corcoran Substance Abuse and Treatment Facility ("CSATF"). See id. at 1-3.

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 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 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

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). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. 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. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Allegations in Plaintiff's Complaint

In Plaintiff's complaint, he names Dr. Chen; N. Grannis, Chief Inmate Appeals Branch; T. Brewer, Chief Executive Appeals Officer; D. D. Ortiz, Associate Warden, Health Care Operations; L. Zamora, Chief Appeals; M.D. Biter, Warden; Dr. John Doe; and Dr. N. Patel. Compl. at 1, 3, 23 of Part 1 & 79 of Part 2 of Complaint, Doc. 1. Dr. Chen, D. D. Ortiz, and M.D. Biter were employed at KVSP and Dr. John Doe was employed at CSATF. Id. The remainder of the forty-seven (47) defendants were employed or related to claims arising at other prisons, namely SVSP, MCSP, and HDSP. Id. at 1-3.

On September 20, 2009, Plaintiff was transferred to CSATF and continued on pain management therapy. Id. at 17. On December 21, 2009, during a ten minute exam, Dr. John Doe would not take a urine sample or treat infection, causing Plaintiff to go to the hospital. Id. at 23, 28. Dr. John Doe stated that Plaintiff claims he is not adequately controlled on Tylenol and wants morphine. Id. at 53, Part 2 of Complaint. Dr. John Doe declined to order morphine. Id. On December 25, 2009, Plaintiff had an infection in his urinary tract. Id. at 17, Part 1 of Complaint. Following the infection, Plaintiff was placed on a treatment plan at CSATF to include pain management and urine checks. Id.

On July 20, 2010, Plaintiff was transferred from CSATF to KVSP. Id. at 5, 17. Plaintiff's medications were discontinued without being seen. Id. at 5. Weeks later, Dr. Chen denied all pain management medications, refused recommendations from specialist regarding surgical issues, refused to renew mobility, denied batteries for his hearing aid, and denied renewal of his ADA hearing impaired. Id. He was refused urine testing for several months even though he has a documented history of kidney stones. Id. at 6. Dr. Chen refused to consider prior specialist recommendations. Id. Dr. Chen told him to drink large amounts of water, but the water has documented high levels of arsenic. Id. Dr. Chen told him that if he did not drink the water, he would experience kidney pain. Id. Plaintiff has developed a cyst on his liver and a severe skin rash covering his body, which are symptoms of arsenic poisoning. Id. As a result of the pain and skin rash, Plaintiff was on suicide watch in January and March 2011. Id. As a result of the pain and anger issues between Dr. Chen and Plaintiff, he was transferred to a different yard and placed under the care of Dr. J. Sanchez. Id. Dr. Sanchez renewed Plaintiff's ADA status and ordered a new knee brace that Dr. Chen had refused to provide him for over three months. Id. Plaintiff's 602 inmate appeal time restraints were violated, Plaintiff had to involve the warden and internal affairs. Id. at 7. Plaintiff's specialist recommendations were refused because Dr. Sanchez said Dr. Chen was his superior and he would not disagree with his opinion. Id.

On November 29, 2010, D. D. Ortiz, Associate Warden, Health Care Operations, issued a memorandum stating Plaintiff's appeal at KVSP was still pending. Id. at 79, Part 2 of Complaint. On January 27, 2011, T. Brewer, Chief Executive Officer for KVSP, issued a second level response to Plaintiff's appeal. Id. at 70-71. Plaintiff was interviewed about his appeal by Dr. Patel, and on September 8, 2010 and September 22, 2010, Plaintiff was seen by the urologist who did not feel that methadone was required. Id. at 70. The doctor noted there were no active symptoms of kidney stones. Id. On November 4, 2010, Plaintiff was seen and the doctor noted no manifestation of kidney stone attacks. Id. at 71. Plaintiff requested methadone on numerous times. Id. On December 1, 2010, Plaintiff had a CT Scan of the abdomen and pelvis. Id. On March 24, 2011, L. Zamora, Chief, Office of Third Level Appeals, screened out Plaintiff's appeal for time constraints. Id. at 72.

As of May 30, 2011, Plaintiff still has no treatment for his chronic issues or his skin rash. Id. at 7, Part 1 of Complaint. Plaintiff cannot sit or stand for more than fifteen minutes and he has not received the knee brace. Id. He has kidney stone issues and blood off an on in his urine. Id. He is being accused of drug seeking behavior when he requests to be returned to a specialist for pain management. Id. at 23.

Plaintiff also attaches exhibits and chronologizes allegations from 2005 through 2009 at other prisons, namely SVSP, MCSP, and HDSP. Id. at 7-28, 30-100 of Part 1 & 1-52 of Part 2 of Complaint.

For relief, Plaintiff seeks proper medical attention; damages of $1,500,000 and $25,000 from each defendant; and to be found innocent or guilty for assault on staff. Id. at 5.

III. Legal Standard and Analysis for Plaintiff's Claims

A. Rule 20(a) and Venue

Having examined Plaintiff's claims, the Court finds that Plaintiff's complaint is in violation of Rule 20(a)(2) of the Federal Rules of Civil Procedure. Pursuant to Federal Rule of Civil Procedure 20(a)(2), persons may be joined as defendants in one action if the right asserted against them arises from the same transaction or occurrence, and any questions of law or fact common to all defendants will arise in the action. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (finding unrelated claims against different defendants belong in different suits).

Here, Plaintiff's claims against defendants and allegations from other prisons, namely SVSP, MCSP, and HDSP, arise from different unrelated occurrences, as the alleged violations all occurred at prisons not within the Fresno division of the Eastern District of California. SVSP is in the Northern District of California, and MCSP and HDSP are in the Sacramento division of the Eastern District of California, and venue is appropriate there. Accordingly, the Court will dismiss Plaintiff's claims ...


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