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Kevin Moore v. David Stevig

November 13, 2012

KEVIN MOORE,
PLAINTIFF,
v.
DAVID STEVIG, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION FOR FAILURE TO STATE A CLAIM Doc. 24 FIFTEEN DAY DEADLINE

I. Procedural History

On July 6, 2011, Plaintiff Kevin Moore ("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 treat his hepatitis medical condition from 2002 through 2011. Doc. 1 at 8-9. Defendants were employed at California Men's Colony, San Luis Obispo, Corcoran State Prison, and Pleasant Valley State Prison. Doc. 1 at 3. On May 29, 2012, the Court screened the complaint and dismissed the action with leave to amend for failure to state a claim upon which § 1983 relief could be granted. Doc. 23. On June 22, 2012, Plaintiff filed the first amended complaint which is currently before the Court. Doc. 24.

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 the Deuel Vocational Institute (DVI) in Tracy, California. The events central to Plaintiff's complaint occurred while he was a prisoner at various California state prison. Doc. 24 at 4. In the complaint, Plaintiff names the following as a defendants: 1) Moon (M.D. at Corcoran State Prison); and 2) Chokatos (M.D. at Pleasant Valley State Prison). Doc. 24 at 4. Plaintiff also mentions the actions of Dr. Ho, however, it is unclear whether he is naming Dr. Ho as a defendant. Doc. 24 at 7-8, 12. Plaintiff requests monetary relief and injunctive relief in the form of requiring two new medications to be prescribed to Plaintiff. Doc. 24 at 10, 14.

Plaintiff alleges that Defendants Moon and Chokatos failed to provide adequate medical care for Plaintiff's serious medical need which amounts to deliberate indifference. Doc. 24 at 4. According to Plaintiff, he did not receive any medications from Defendants Moon and Chokatos and did not receive the new medication to treat Hepatitis C. Doc. 24 at 4. Plaintiff argues that his attachment from the American Liver Association demonstrates that his life-span is shortened without the new medication. Doc. 24 at 4. Plaintiff is not receiving medication currently as a result of Defendants Moon and Chokatos' diagnosis and treatment plans. Doc. 24 at 4. Plaintiff reiterates that he has not received the new medication needed to treat his Hepatitis C and not the "interferon injection." Doc. 24 at 5. Plaintiff alleges that the medication of "interferon" did nothing to change the course of his Hepatitis C infection and defendant Chokatos knew that these injections were not working. Doc. 24 at 6. Defendant Chokatos told Plaintiff that he would receive a new drug to treat Hepatitis C. Doc. 24 at 6. According to Plaintiff from 2002 to 2011 all of the Defendants have failed to provide adequate care. Doc. 24 at 6. Plaintiff alleges that he told the official about his condition in his 602 grievance and "they" knew his condition was getting worse, however, doctors at Pleasant Valley State Prison told Plaintiff that they did not have the medication to treat Hepatitis C. Doc. 24 at 7 (citing to grievance Log No. PVSP-27-11-12651). Plaintiff states that on August 2, 2011, Dr. Ho interviewed Plaintiff and stated that they gave Plaintiff four weeks of treatment to justify grievance log No. 09-2010-13896. Doc. 24 at 7-8. In grievance log No. PVSP-27-11-12651 medical staff stated that Plaintiff's medical issues are being adequately accommodated. Doc. 24 at 8. According to Plaintiff, Dr. Ho and Chokatos stated that the medication "Boceprevir" and "Telaprevir" have not been approved to treat Plaintiff's Hepatitis C and that Plaintiff's laboratory results were within normal limits. Doc. 24 at 8, 12. When Plaintiff asked Dr. Ho why the new medications would not get approved, Plaintiff was told that the State of California does not have any money. Doc. 24 at 12.

According to Plaintiff the Federal Drug Administration (FDA) approved of Victrelis (Boceprevir) and Incinern (Telaprevir) to be used in combination with Pegylated Interferon and Ribavirin to treat Hepatitis C. Doc. 24 at 9. Plaintiff emphasizes the importance of treating the disease early and argues that if he is given the new medication at his current stage, he would have a chance for his liver to heal. Doc. 24 at 9-10. Plaintiff states that he can show that the Department of Corrections refuse to treat Plaintiff's medical condition by not giving Plaintiff "Victrelis" (Boceprevir) and Inciver (Telaprevir). Doc. 24 at 12. Plaintiff states that he is bringing a claim against Defendants Chokatos and Mood based on supervisory liability. Doc. 24 at 13.

IV. Applicable Law and Analysis

A. Rule 8

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, 677 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct, Iqbal at 1950, and while factual allegations are accepted as true, legal conclusions are not, id. at 1949.

1. Analysis

Plaintiff's legal conclusions fail to comply with Rule 8(a). Plaintiff bears the burden of separately setting forth his legal claims and for each claim, briefly and clearly providing the facts supporting the claim so that the Court and Defendants are readily able to understand the ...


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