The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS ECOMMENDING DISMISSING CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A COGNIZABLE CLAIM (ECF No. 17)
OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Anthony D. Wafer is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on June 18, 2007. On February 22, 2008, the complaint was dismissed, with leave to amend. (ECF No. 9.) On May 15, 2009, the first amended complaint was dismissed, with leave to amend, for failure to state a claim. (ECF No. 13.) Following reassignment of this action to the undersigned, the Court vacated the previously issued findings and recommendations, and currently before the Court is the second amended complaint, filed July 23, 2009. (ECF No. 17.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
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, but 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 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
III. Second Amended Complaint Allegations
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation ("CDCR") and is incarcerated at California State Prison, Los Angeles County. At the time of the incidents alleged in the complaint, Plaintiff was housed at California State Prison, Corcoran ("CSP-Corcoran"). Plaintiff brings this action naming various medical providers and appeal officials alleging deliberate indifference to his medical needs in violation of the Eighth Amendment.
On April 24, 2003, Defendant Suesberry performed surgery to remove a keloid from the right side of Plaintiff's head. During the surgery a skin graft was performed. Plaintiff returned to CSP- Corcoran and was informed that no pain medication had been prescribed for his pain and swelling. (Sec. Am. Compl. 4,*fn1 ECF No. 17.) Plaintiff alleges that a second keloid began to form due to not receiving proper medical treatment. (Id. at 7.)
On April 30, 2003, Plaintiff returned to see Defendant Suesberry to have his stitches removed. Plaintiff asked Defendant Suesberry why medication had not been ordered and Defendant Suesberry replied that medication should have been ordered the evening of surgery or the next morning. (Id.)
On May 14, 2003, Plaintiff once again saw Defendant Suesberry and asked why no medication had been ordered. (Id.) Defendant Suesberry informed Plaintiff that he should have been receiving medication from April 24 until May 4. (Id. at 7-8). Plaintiff asked Defendant Suesberry why the dressing had been stitched to his head so it could not be changed. Defendant Suesberry replied that sometimes these things take time and that he was sure everything would be fine. (Id. at 8.)
Plaintiff advised Defendant Suesberry that he was experiencing pain in his head and neck area and the wound had a foul odor and was leaking blood. Defendant Suesberry told Plaintiff that he would prescribe something for the pain and an ointment and antibiotics for infection. When Plaintiff returned to CSP-Corcoran, he discovered that no medication had been ordered. For several months Plaintiff complained to staff at CSP-Corcoran that he was experiencing pain, swelling, and fluid leaking from the site of the surgery. (Id. at 8.)
On June 27, 2003, Plaintiff was seen by Dr. Greaves who referred Plaintiff back to Defendant Suesberry for a follow-up due to the formation of another keloid on Plaintiff's head and reformation of the original keloid that was removed. (Id.) Dr. Greaves informed Plaintiff that the lack of aftercare caused the reformation of the keloid and the formation of the new keloid. (Id. at 9.)
On July 17, 2003, Plaintiff was seen by Dr. Abramowitz, who observed severe swelling to Plaintiff's head and neck, as well as a foul odor. Dr. Abramowitz immediately prescribed medication to Plaintiff and informed him to never let anyone do a skin graft in this manner again. Dr. Abramowitz told Plaintiff that due to the manner in which the surgery had been performed the scar that was left may be hard to remove. On August 1, 2003, Plaintiff was seen by Dr. Sanchez who advised Plaintiff that, 'the removal of the keloids would be a mess to rectify, especially due to the possibility of recurrence of these types of keloids." Dr. Sanchez also informed Plaintiff that whoever had performed the surgery had "screwed up." (Id.)
On August 12, 2003, Plaintiff filed an inmate appeal regarding not having received proper medical care. Plaintiff then contacted the Prison Law Office regarding the issue. On September 12, 2003, Plaintiff received a letter from the Prison Law Office stating they had sent a letter to the State of California Department of Justice and received a response stating that Plaintiff had properly healed and was receiving follow-ups at regular intervals. The letter also stated that Plaintiff did not receive pain medication after surgery because it was not ordered by the physician and they did not know why it had not been ordered. (Id. at 10.)
Plaintiff saw Defendant Suesberry again and was given "a few shots of 'kenalog' a steroid compound to possibly help keep down the growth of the keloids." (Id.) Plaintiff was advised by Defendant Suesberry and by the Chief Medical Officer that he would be seen by a specialist to see what could be done about the pain management and growth of the keloids. (Id. at 10-11.) Several months later, in January 2005, Plaintiff was taken to a medical facility to have x-rays completed and samples of the fluids taken to be examined. (Id. at 11.)
On March 18, 2005, Plaintiff was examined by Dr. Davis. Dr. Davis advised Plaintiff that a specialist was urgently needed to reduce the likelihood of the reoccurrence of the keloids and he would refer Plaintiff to a plastic surgeon for possible removal of the lesions followed by radiation therapy. Dr. Davis advised Plaintiff that if he did not have radiation therapy following the removal of the keloids it was highly likely they would reoccur. (Id.) Plaintiff saw Dr. Davis again on February 23, 2006. Dr. Davis took pictures and measurements to document the growth of the keloids. (Id. at 12.)
On March 27, 2006, Plaintiff was taken to have the keloids removed, but the surgery was cancelled because the pre-operative radiation treatments had not been performed. (Id.) Plaintiff made another request for pain, swelling, and infection medication, but no medication was issued. Defendant Reynolds made several physician's requests for Plaintiff to be seen by a specialist and to receive pre-operative and post-operative radiation treatment. (Id. at 13-14.) On May 10, 2006, Plaintiff was seen by Defendant Yamaguchi who stated that he would not perform the surgery because the prior treatment plan was not followed. (Id.) Defendant Yamaguchi later wrote a report stating that the surgery could not be preformed due to the reoccurrences of these types of keloids. (Id. at 12-13.)
On this same day, Plaintiff was seen by Defendant Reynolds who told Plaintiff that the visit was to see if the prison could find a doctor who was willing to perform the surgery for less money because the recommended treatment was too expensive. Plaintiff requested medication for pain and swelling, but Defendant Reynolds failed to order medication. (Id. at 14.)
On August 2, 2006, Plaintiff was seen by Defendant Hasadsir regarding his inmate appeal. Defendant Hasadsir guaranteed that Plaintiff would be referred to a specialist for evaluation of the keloids and that he would submit Plaintiff's complaints to the medical board for review and approval for his surgery. Defendant Hasadsir told Plaintiff that he would order medication for pain and swelling, but no medication was ordered. (Id.)
Plaintiff saw Defendant Hasadsir again several months later. Defendant Hasadsir told Plaintiff that there was nothing he could do for Plaintiff in regards to the keloids and he refused to prescribe medication for Plaintiff. (Id.) On December 1, 2006, Plaintiff saw Defendant Hasadir who told Plaintiff that his medical records showed Plaintiff had seen a specialist outside the prison regarding his keloids. Plaintiff insisted this was not true. Defendant Hasadir refused to let Plaintiff see the paperwork and had guards remove Plaintiff from his office. (Id. at 15.)
On May 23, 2006, Defendant Doe partially granted Plaintiff's inmate appeal. Defendant Doe assumed that Plaintiff made demands as to the type of treatment to be provided. Plaintiff made no such demands, but merely requested the treatment recommended by the previous specialist. Plaintiff alleges that due to the harsh tone of the response to Plaintiff's appeal this individual was not interested in following through to assure Plaintiff received proper medical treatment. (Id. at 16.) At the second level of review, Defendant McGuinness partially granted Plaintiff's administrative appeal. Defendant McGuinness agreed with Defendant Hasadir that there was a need for treatment. Plaintiff alleges that Defendant McGuinness as Chief Medical Officer was responsible to ensure that Plaintiff received the radiation therapy recommended to remove the keloids. Defendant McGuinness failed to follow through even though Plaintiff's attending physician, Defendant Hasadsri stated that medical treatment was needed. (Id. at 17.)
At the Director's Level of Review, Defendant Hodge-Wilkins denied Plaintiff's appeal in contradiction of every order and diagnosis previously in Plaintiff's medical record. Defendant Hodge-Wilkins stated that Corcoran medical staff were contacted . The information in Plaintiff's medical file revealed that consultation services were initiated by Defendant Hasadsri and approved. Prior to surgery, Plaintiff was to have received radiation therapy but this was never scheduled. Plaintiff alleges his request for treatment was denied and he was prevented Plaintiff from receiving proper medical care. (Id. at 18.)
Plaintiff contends that Defendant Grannis had a duty as Chief of the Inmate Appeals Branch to apply policy and procedures. Plaintiff's complaint was submitted with the majority of orders by attending physicians. Defendant Grannis should have implemented policies that were already in place . Plaintiff alleges that Defendant Grannis violated the Equal Protection Clause by failing to do so and was deliberately indifferent to Plaintiff's serious medical need by denying Plaintiff's appeal for no apparent reason. (Id. at 19.)
Defendant Kimura-Yip is Staff Services Manager of the Clinical Programs Risk Management Unit and has done nothing to assist Plaintiff with his health care services. One of Plaintiff's inmate labor supervisor's contacted Defendant Kimura-Yip's Office due to the pain, swelling, and bleeding which interfered with Plaintiff's work duties. No one returned any of the calls made to the office. (Id.)
The Prison Law Office sent a request to which Defendant Kimura-Yip responded, "no, Mr. Wafer has not received any radiation treatments, nor surgery, because Dr. Davies' [sic] (UCM-Florence Wheeler Cancer Center) recommendation is for Mr. Wafer to be examined and evaluated by a plastic surgeon. The radiation treatments will only be needed if Mr. Wafer is a candidate for surgery, which Dr. Yamaguchi (UMC Wound Care Clinic) did not recommend because of the reoccurrence of the keloids." (Id. at 20.) In response to the request of what was being done for Plaintiff's pain, she responded that Plaintiff had been prescribed acetaminophen, 325 m.g. twice a day as needed for pain. (Id.)
In February 2007, Defendant Greenough spoke with the Prison Law Office about the issue of keloids. He explained that the treatment of keloids is a controversial issue and that it is difficult to find a doctor that will operate on a patient once a keloid reoccurs. Plaintiff alleges that this statement is simply not true. Plaintiff claims that Dr. Davis' letter proves that all prison officials had to do was make an appointment with a specialist and this was never done. (Id. at 22.)
Plaintiff's second amended complaint states a cognizable claim against Defendants Suesberry, Reynolds, and Hasadsir for failure to prescribe medication to treat Plaintiff's claims of pain, swelling, and infection, but fails to state any other cognizable claims for relief. Plaintiff's previous complaints have been dismissed, with leave to amend, with direction by the Court. Plaintiff has now filed three complaints without curing the deficiencies in his complaint, therefore the Court recommends that some of Plaintiff's claims be dismissed with prejudice as discussed below. However, the Court finds that Plaintiff may be able to state a cognizable claim based upon the failure to provide radiation therapy prior to his surgical ...