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Gail Sepulveda v. Kelly Harrington

September 6, 2012

GAIL SEPULVEDA,
PLAINTIFF,
v.
KELLY HARRINGTON, ET AL.,
DEFENDANTS.



ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

I. Procedural History

Gail Sepulveda ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis, in this civil rights action pursuant to 42 U.S.C. § 1983. On November 10, 2010, Plaintiff filed the complaint which is presently before this Court. Doc. 1.

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, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

III. Plaintiff's Complaint

Plaintiff is currently a state prisoner at Kern Valley State Prison (KVSP) in Delano, California. The events central to Plaintiff's complaint occurred while he was at prisoner at KVSP. Doc. 1. In the complaint, Plaintiff names the following individuals as defendants in this action: 1) Kelly Harrington (Warden at KVSP); 2) S. Lopez (M.D. at KVSP); 3) Hung (M.D. at KVSP); and 4) A. Arambula (R.N. at KVSP). Doc. 1 at 6-7. Plaintiff seeks compensatory and punitive relief. Doc. 1 at 9.

Plaintiff alleges that in August of 2008, Plaintiff was diagnosed as disabled by the medical staff at North Kern State Prison. Doc. 1 at 1. Plaintiff suffered from a serious back injury which confined him to a wheelchair and necessitated medication to manage his severe constant pain. Doc. 1 at 1-2. According to Plaintiff, at the end of 2008 he was transferred to KVSP and was denied pain medicine. Doc. 1 at 2. It was very difficult for Plaintiff to move around because of the extreme pain due to the denial of the pain medication. Doc. 1 at 2. Plaintiff filed numerous appeals and medical requests and had been seen by registered nurses and doctors. Doc. 1 at 2. Plaintiff states that most of his medical visits end in verbal altercations because Plaintiff would not receive the medication that the doctors prescribed. Doc. 1 at 2. Although the responses to his medical grievances stated that Plaintiff received the medication, Plaintiff contends that he never received the medication, except for the changed medication that had no effect on the pain. Doc. 1 at 2.

Plaintiff alleges that Defendant Arumbula refused to give Plaintiff the prescribed medication. Doc. 1 at 2. After Plaintiff filed the CDC form 7362 request for medical care form, Defendant said to Plaintiff: "you were asked to present any documents to support your claims(s), and you failed to do so." Doc. 1 at 2. Plaintiff states that "this action" branded Plaintiff as a "pain in the ass' and made it difficult for Plaintiff to get any assistance from any medical staff. Doc. 1 at 2. On numerous occasions Defendant Arambula refused to give Plaintiff his prescribed medicine and Plaintiff has protested to the point of verbal confrontations with Defendant Arambula. Doc. 1 at 3.

According to Plaintiff, Defendant Lopez in the capacity as Chief Medical Officer, denied all of Plaintiff's requests concerning his pain medication. Doc. 1 at 3. Plaintiff argues that Defendant Lopez should have exercised his authority to order examinations to determine Plaintiff's need for medication and follow the instructions of the specialist that prescribed the medicine for Plaintiff's special need. Doc. 1 at 3. Plaintiff also argues that Defendant Lopez has violated the Americans with Disabilities Act by not "complying with the needs of a disable[d] person." Doc. 1 at 3. Plaintiff states that due to time constraints he will list the remaining defendants in his amended complaint. Doc. 1 at 3.

IV. Plaintiff's Claims

A. Eighth Amendment

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060).

To state a viable claim, Plaintiff must demonstrate that each named defendantpersonally participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934. Liability may not be imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235, and supervisors may only be held liable if they "participated in or directed the violations, or knew of the violations and failed to act to prevent them," Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); ...


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