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Lamont Sheppard v. Days Dr. Cohen

March 13, 2013

LAMONT SHEPPARD,
PLAINTIFF,
v.
DAYS DR. COHEN, 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 (ECF No. 1)

Screening Order

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 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 California Department of Corrections and Rehabilitation (CDCR) at Corcoran State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at Corcoran. Plaintiff names the following individual defendants: Dr. Cohen, M.D.; Sergeant Lopez; Correctional Officer (C/O) Dean; C/O Campbell. Plaintiff claims that defendants forced Plaintiff to take medication in violation of the Due Process Clause of the Fourteenth Amendment.

Plaintiff alleges that on December 13, 2008, he was taken to the Acute Care Hospital because he refused to talk with custody staff or medical staff. Plaintiff had been charged with threatening a peace officer. Dr. Cohen ordered Defendants Lopez, Dean and Campbell to hold Plaintiff down while he was given an injection of Haldol.

Lopez grabbed Plaintiff's right arm, "forcing me face down on the gurney in putting his weight on me in order for me not to move." Campbell grabbed Plaintiff's left arm and "twisted it has he too forced me down on the gurney, also putting his weight into it." Defendant Dean held Plaintiff's head, "putting his weight into it."

After receiving the injection, Plaintiff was released and placed in a holding cage. Plaintiff advised Defendant Lopez that his heart began to beat irregularly. Lopez informed Dr. Cohen, and Plaintiff was taken out of the holding cage and an EKG was performed. Plaintiff alleges that the EKG "showed some unnormalcy." Plaintiff was returned to the holding cage without being treated for the heart problem. Dr. Cohen told Plaintiff that "you loss conscious, because you over dose on drugs or medicine." Plaintiff alleges that this is a perjured statement. Plaintiff was admitted to the Acute Care Hospital at CSP Corcoran as a "crisis patient" for the next two days.

Plaintiff attaches as an exhibit to his complaint a copy of the Director's Level Decision of his inmate appeal regarding his forced medication.*fn1 The response indicates that on December 13, 2008, Plaintiff was seen by Dr. Cohen but refused to answer any questions. Plaintiff was then forcefully given a 10 mg injection of Haldol against his will by order of Dr. Cohen. The response indicates that Plaintiff's appeal was partially granted at the First Level, and "indicated your medical record revealed you took an overdose of drugs and lost consciousness. Dr. Cohen described you as being extremely angry and irritable. As you refused to talk, Dr. Cohen was unable to assess adequately. The usage of involuntary medication was reviewed. Appropriate action was taken and Dr. Cohen no longer works for CDCR."

Plaintiff previously filed this action in Shepard v. Cohen, et al., case number 1:09-cv-01628 OWW GBC PC. That action was dismissed on Defendants' motion for Plaintiff's failure to exhaust his available administrative remedies prior to filing suit. Page 7 of Exhibit A attached to the declaration of L. Salinas in support of Defendants' motion to dismiss in that case indicates that:

It is the appellant's [Plaintiff's] position that on Dec. 13, 2008, he was escorted to emergency room of JDK Hospital as he refused to answer to questions during the mental health screening upon entry to CCCMS Ad Seg Unit and ignored the orders of officers. He also claims he has the "right to remain silent citing CCR 3316-3320." He was seen by Dr. Cohen in the E/R, but the appellant refused to answer any question. Subsequently he was forcefully given Haldol 10 mg injection against his will on ...


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