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Arthur F. Vasquez v. Tate

April 25, 2013

ARTHUR F. VASQUEZ,
PLAINTIFF,
v.
TATE, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER NOTIFY THE COURT THAT HE WISHES TO PROCEED ON HIS COGNIZABLE CLAIMS OR FILE A THIRD AMENDED COMPLAINT (Doc. 11)

Plaintiff Arthur F. Vasquez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in an action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the United States Magistrate Judge. (Doc. 5). Plaintiff filed his first amended complaint on October 14, 2011. (Doc. 8). The Court dismissed the first amended complaint on December 28, 2012, but granted Plaintiff leave to file a second amended complaint. (Doc. 10). Plaintiff timely filed his second amended complaint on January 28, 2013, (Doc. 11), which the Court now screens pursuant to 28 U.S.C. § 1915A(a)-(b).

For the following reasons, the Court ORDERS Plaintiff to either NOTIFY the Court whether he wishes to proceed on his cognizable claims or to FILE a third amended complaint.

I.SCREENING REQUIREMENT

Because Plaintiff is seeking redress from governmental employees in a civil action, the Court is required to screen his complaint in order to identify cognizable claims. 28 U.S.C. § 1915A(a)-(b).

The Court shall "dismiss the complaint, or any portion of the complaint, if the complaint (1) is 2 frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary 3 relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 4 1915(e)(2)(B)(i)-(iii). 5

II.PLEADING STANDARDS

A.Fed. R. Civ. P. 8(a)

"Pro se documents are to be liberally construed" and "'must be held to 'less stringent standards 8 than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting 9 Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" (Id.) Under Federal Rule of Civil Procedure 8(a), "[a] pleading that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court's jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." Fed. R. Civ. P. 8(a). Each allegation must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (quotation marks, citations omitted).

In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all nonconclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." (Id. at 1949) (Internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." (Id. at 1950)

B.42 U.S.C. § 1983

In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that the violation was proximately caused by a person acting under color of state law. See Crumpton v. 2 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a 3 plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, 4 or omitted to perform an act which he was legally required to do that caused the deprivation 5 complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 6 F.2d 740, 743-44 (9th Cir. 1978)). 7

III.SECOND AMENDED COMPLAINT 8

At all times relevant to the second amended complaint,*fn1 Plaintiff was incarcerated at the California Correctional Institute ("CCI") located in Tehachapi, California. (Doc 11 at 4; 5 ¶¶ 6). Plaintiff joins the following as defendants to this matter: (1) Dr. Joaquin, the chief medical officer ("cmo") at CCI; (2) Dr. Grimm, a medical doctor at CCI; (3) Nurse Bautista, a registered nurse at CCI; (4) Nurse Lapham, a registered nurses at CCI; (5) Pharmacist Atardo, an institutional pharmacist at CCI; (6) Nurse Andreola, the Specialty Clinic scheduling nurse; and (7) Dr. Scott, an ophthalmologist who has contracted with the California Department of Corrections and Rehabilitation ("CDCR") to provide services to inmates (collectively "Defendants"). Id. 5 ¶¶ 7, 8; 6 ¶¶ 9-12; 7 ¶ 13. Plaintiff's 187 page*fn2 complaint is summarized as follows:

In 2009, Plaintiff developed a pterygium or growth on his right eye, which Dr. Scott diagnosed as necessitating surgical removal. Id. at 7 ¶¶ 15-16. Dr. Joaquin approved Dr. Scott's recommendation, and Dr. Scott performed surgery on September 1, 2009. Id. at 7-8 ¶¶ 16, 18. Dr. Scott recommended a follow-up visit, prescribed an adrenocortical steroid ("pred forte 1%") and ciprofloxacin for twenty-one day use, and instructed Plaintiff to keep his wound clean. Id. at 8 ¶¶ 19-20. Plaintiff returned to his cell without extra bandages for his eye, and was not provided his medications until September 3 and 4, 2009. Id. 8 ¶¶ 21, 23; 9 ¶¶ 27-28.

On September 4, 2009, Dr. Grimm, who is not an ophthalmologist, met with, but did not 2 examine Plaintiff. Id. at 9 ¶¶ 28-30. Dr. Grimm informed Plaintiff that Plaintiff did not need any 3 follow-up appointment with Dr. Scott, despite Plaintiff's concerns about the surgery. Id. at 9 ¶¶ 28-29. 4

Plaintiff avers that Dr. Grimm should have checked the ocular pressure in Plaintiff's right eye and 5 "check[ed] on the healing of the stitches." Id. at 9 ¶ 30. Dr. Grimm canceled Plaintiff's follow-up with 6 Dr. Scott. Id. at 10 ¶ 39. 7

On an undisclosed date, Plaintiff petitioned Defendant Bautista for emergency medical 8 treatment while she made "her rounds." Id. at 9 ¶ 33. Defendant Bautista advised Plaintiff to fill out 9 the appropriate form to receive medical care, which Plaintiff did on September 8 and 9, 2009. Id. at 10 ¶ 34. Similarly, on September 10, 2009, Nurse Asher informed Plaintiff that his eye irritation was part of the normal healing process. Id. at 10 ¶ 36. On October 7 and 17, 2009, Plaintiff submitted additional requests to receive medical treatment and was finally seen by Defendant Grimm on October 21, 2009, at which time he scheduled an "urgent" referral to Dr. Scott. Id. at 10 ¶ 38.

On October 24, 2009, Plaintiff awoke with blurry vision and a blood blister on his eye, at which time Nurse Bautista told him to follow protocol and fill out the requisite form. Id. at 10 ¶ 40. Nurse Lapham examined Plaintiff for his condition the following day and took only his vital signs. Id. Nurse Lapham informed Plaintiff that she could not do anything for Plaintiff because she was not a specialist. Id. at 11, ¶ 42.

Five days later, Dr. Scott examined Plaintiff and opined that Plaintiff's infection may be caused by the delay in applying the medication to Plaintiff's eye after the September 1, 2009, surgery. Id. at 11 ¶ 45. Dr. Scott prescribed pred forte 1% and artificial tears and ordered a follow-up visit, which Nurse Andreola never scheduled. Id. at 11 ¶ 45, 46. It appears that Nurse Andreola was present at most of Plaintiff's appointments with Dr. Scott and was provided "follow-up appointment orders by Dr. Scott. Id. at 12, ¶ 47, 48. While Nurse Andreola often delayed in scheduling his appointments, she scheduled most of Plaintiff's follow-up appointments after he filed administrative grievances against her. Id. at 12, ¶ 48.

On December 9, 2009, K.A. Lee, M.D., examined Plaintiff's infected eye. Id. at 12 ¶ 51. Three days later, Dr. Scott again inspected Plaintiff's eye and ordered pred forte 1 %, a corticosteroid. Id. at 12 ¶ 52. Dr. Scott excised the growth on Plaintiff's eye on January 16, 2010, and conducted a follow-2 up examination on January 29, 2010. Id. at 13, 14 ¶¶ 53, 54. At the January 29, 2010, visit, Plaintiff 3 learned he may have developed glaucoma due to the long term use of the corticosteroid. Id. at 13 ¶ 54. 4

Dr. Scott diagnosed Plaintiff with glaucoma on March 12, 2010, determined that Plaintiff 5 required additional surgery, and prescribed mild pred forte and xalatan. Id. at 14 ¶ 64. Plaintiff 6 received his medication five days later. Id. at 14, ¶ 65. Dr. Scott prescribed eye-drops on May 21, 7 2010. Id. at 14, ¶ 66. Due to an apparently erroneous prescription instruction, Nurse Bautista told 8 Plaintiff to apply the drops in his left eye rather than his right eye. Id. at 15, ¶¶68, 69. 9

Dr. Scott performed a third surgery on September 28, 2010. Id. at 16, ¶ 79. Dr. Scott saw Plaintiff for follow-up examinations on October 8, October 22, November 5, and December 24, 2010, when she discovered that a cyst had grown on Plaintiff's right eye. Id. at 16 ¶¶ 81, 82. Plaintiff underwent his fourth surgery on March 13, 2011, to remove the cyst. Id. at 17 ¶ 88.

IV.DISCUSSION AND ANALYSIS

A.Plaintiff must demonstrate that each defendant was deliberately indifferent to his serious medical condition.

As Plaintiff was previously advised,*fn3 to establish a violation of the Eighth Amendment based on inadequate medical care, a plaintiff must demonstrate "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). In other words, the plaintiff must show the existence of (1) a serious medical need and (2) a ...


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