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Delia Lemus v. Arnold Shwarzeneggar

November 6, 2012

DELIA LEMUS,
PLAINTIFF,
v.
ARNOLD SHWARZENEGGAR, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

SECOND SCREENING ORDER DENYING MOTION TO AMEND PRAYER FOR RELIEF AS MOOT AND DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Docs. 13 and 14)

Second Screening Order

I. Screening Requirement and Standard

Plaintiff Delia Lemus, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 11, 2011. On March 12, 2012, the Court screened Plaintiff's complaint and dismissed it, with leave to amend, for failure to state a claim. Plaintiff filed an amended complaint on May 10, 2012, and on May 24, 2012, Plaintiff filed a motion to amend her prayer for relief relating to damages, accompanied by the proposed amendment.

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

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) (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 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Discussion

A. Allegations

Plaintiff is incarcerated at Central California Women's Facility (CCWF) in Chowchilla, California. She brings this action against the California Department of Corrections and Rehabilitation (CDCR), CCWF, Warden Javier Cavazos, Chief Medical Officer Steven Heyne, Doctors Jameson, Lwin, Romero, Gill, Mekkam, MacKenna, and Do, Registered Nurses Barr and Lewis, and all CDCR employees at CCWF for violating her rights under the Eighth Amendment of the United States Constitution.

Plaintiff's allegations are based almost entirely on her review of her medical records. Plaintiff alleges that in 1996, she went to see a doctor at CCWF for complaints of a rash and pain in her shoulder and hip.*fn1 Throughout 1996, Plaintiff went to the doctor 10 times, based on a persistent feeling that something was wrong. Plaintiff was initially misdiagnosed with scabies, which she describes as humiliating, and she had blood drawn for testing 4 times, with no relief. Finally, a nurse recognized Plaintiff's symptoms and ordered a hepatitis panel, which revealed Plaintiff was positive for hepatitis B.

In 1997, Plaintiff had blood work done at Madera Hospital with results in the out of normal range. Plaintiff tested positive for the hepatitis C virus (HCV), but she alleges that as of May 1997, she had not yet been informed of the results by her doctor. In 1997, Plaintiff saw the doctor 8 times and had blood work done 3 times with results in the out of normal range.

Plaintiff alleges that by 1997/1998, she had been placed in the chronic care patient (CCP) program for HCV, and CCP flow sheets show that in 1998, she went to the doctor 7 times, saw the CCP provider 6 times, and had lab work done 4 times.

In 1999, Defendant Wu ordered a liver wedge biopsy, which showed no abnormal fibrosis or cirrhosis but out-of-range RNA. Plaintiff alleges that in 1999, she went to the doctor 18 times and had lab work done 6 times, the results of which were out-of-range. Defendant McKenna documented that Plaintiff's RNA had increased from 16,000 to over 181,000, Plaintiff's biopsy showed no cirrhosis, and the plan was to refer Plaintiff to the hepatitis clinic for a recommendation regarding interferon treatment. Plaintiff alleges that this was never done, she was not counseled verbally, and she found the note in her medical records, which evidences deliberate indifference.

Plaintiff alleges that on January 3, 2000, Defendant Mekkam noted in her chart that she was HCV positive, her liver biopsy showed minimal inflammation, there would be no further evaluation or treatment for either condition at that time, and she was discharged from the CCP program.

On May 17, 2000, a preventative care visit notation indicated liver problems, hepatitis B and C, and back and leg pain, plus acknowledgment of Defendant Mekkam's ...


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