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Dana Penney v. Jon Franco

December 4, 2012

DANA PENNEY,
PLAINTIFF,
v.
JON FRANCO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 1)

Screening Order

I. Screening Requirement

Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).

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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

Plaintiff, an inmate in the custody of the U.S. Bureau of Prisons at the U.S. Penitentiary in Inez, Kentucky, brings this civil rights action against defendant correctional officials employed by the Bureau of Prisons at the U.S. Penitentiary at Atwater, California. Plaintiff claims that he was subjected to inadequate medical care such that it violated the Eighth Amendment prohibition on cruel and unusual punishment. Plaintiff names the following individual defendants: USP Atwater Warden Hector Rios; Clinical Director Jon Franco; Lourdes Mettery; Nurse Practitioner James Sorenson. The events that give rise to this lawsuit occurred while Plaintiff was housed at Atwater.

Plaintiff alleges that, from June to November of 2008, he became extremely ill. In mid-July, Plaintiff submitted a sick call slip. In response, Defendant Sorenson and C/O Melero came to Plaintiff's cell (Plaintiff was on lockdown). Plaintiff complained of fever, fatigue, chills, extreme weakness, vision problems, hot flashes, and "a general feeling of sickness." Sorenson explained that it was a stomach flu, and it would pass. On the 17th of July, Plaintiff personally handed Sorenson a sick call slip. The following Monday, Plaintiff submitted another sick call slip, because he had not seen a doctor. In August, Plaintiff's symptoms continued, including "a swelling between scrotum and rectum & a numbing pain where swelling was located." In September, Plaintiff's symptoms continued. Plaintiff alleges that "after three months" he was seen by Dr. Franco. Plaintiff alleges that Dr. Franco ordered a colonoscopy because of cancer concerns.

Plaintiff alleges that "around October 5 & 6, 2008," he was feeling extremely ill, and asked C/O Garcia to call the medical clinic." No medical staff appeared. On October 7th, Plaintiff asked C/O Dewitt to call medical. Medical did not respond, and Plaintiff again asked C/O Garcia to get help. Garcia told Plaintiff that they were aware of the problem, and that he thought they had responded. Medical did not respond, and Plaintiff flooded his cell in order to get medical help. Plaintiff was escorted to medical by Lt. Lepei and other officers. Plaintiff was seen by Mid Level Practitioner (MLP) Ogues. Ogues "did a standard check up and stated 'everything was fine."

On October 9, 2008, a colonoscopy was performed, with negative results. On October 16, 2008, Plaintiff was again seen by Dr. Franco, "upon numerous complaints by Plaintiff of symptoms still occurring after 3 months." Prior to the colonoscopy, Dr. Franco had prescribed laxatives and stool softeners. On October 20, 2008, Plaintiff "began to experience tingling & pins & needle sensations throughout body, especially genitals." Plaintiff submitted another sick call request. On November 18, 2008, Plaintiff was seen by Defendant Sorenson, Sorenson told Plaintiff that the symptoms could be the result of something growing on Plaintiff's nerves, possibly cancer. Sorenson told Plaintiff that he would order blood tests "for cancer." Plaintiff believes tests were performed for something else.

On December 2, 2008, Plaintiff filed a grievance against medical and was told that he would be put on a "call-out" for medical. On December 24, 2008, Plaintiff was again seen by Dr. Franco. Plaintiff recited a lengthy list of symptoms, including "re-occurring sores in mouth, 2 small lumps forming on each side of cheek, severe sharp pains in different parts of body, especially scrotum, muscles spasms . . . and back pain." Plaintiff alleges that he has HPV (a sexually transmitted disease). Dr. Franco indicated that he would order blood tests for lyme disease and anemia, and a possible MRI follow up. Plaintiff alleges that Dr. Franco declined to "put a camera down my throat." On January 20, 2009, the blood tests were done, and on February 11, 2009, an MRI was performed. Plaintiff complains that he continued to advise medical officials that he had a sexually transmitted disease (HPV) that can lead to cancer.

A. Medical Care

"[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, 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). Where a prisoner is alleging a delay in ...


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