JAMES A. MOSIER, Plaintiff,
CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILIATION, et al., Defendant.
ORDER DISMISSING SECOND AMENDED COMMPLAINT WITH LEAVE TO AMEND (ECF No. 15).
AMENDED PLEADING DUE WITHIN THIRTY DAYS
MICHAEL J. SENG, Magistrate Judge.
SECOND SCREENING ORDER
I. PROCEDURAL HISTORY
Plaintiff James A. Mosier is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed June 21, 2011 pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
Plaintiff filed a first amended complaint (ECF No. 10) prior to screening of his complaint. The first amended complaint was dismissed for failure to state a claim, but Plaintiff was granted leave to file an amended pleading. (ECF No. 14.) Plaintiff filed a second amended complaint (ECF No. 15), which is now before the Court for screening.
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, malicious, " or 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).
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 508 (1990), quoting 42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor , 490 U.S. 386, 393-94 (1989).
III. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff names as Defendants (1) the California Department of Corrections and Rehabilitation (CDCR),  (2) Cate, Secretary of CDCR, (3) Allison, former Warden, California Substance Abuse and Treatment Facility ("SATF"), (4) Junious, former Warden, North Kern State Prison ("NKSP"), (5) Yang, NKSP Nurse, (6) Enonmeh, SATF Chief Medical Officer, (7) Salinas, SATF Correctional Officer, (8) Williams, SATF Correctional Officer, (9) Vigarino, SATF Correctional Officer, (10) Rodriguez, SATF Correctional Officer, (11) Mata, SATF Correctional Officer, (12) Villasenor, SATF Nurse, (13) Olemeko, SATF Nurse, (14) Doe I.
B. Factual Allegations
Plaintiff suffers from epilepsy and seizures as documented during medical intake screening at NKSP in March of 2011. His claims arose during his initial incarceration at NKSP and following his transfer to SATF, where he remains.
Plaintiff claims that:
Defendants Cate, Allison, Junious, and Enonmeh failed to train, supervise and institute policies for providing effective medical care of inmates including Plaintiff.
Defendant Yang gave Plaintiff medication (Depakote) even though Plaintiff had advised he was allergic to it. The Depakote was continued for two weeks "during which time [P]laintiff experience daily seizures, which medical staff insisted [he] was faking." (ECF No. 15 at ¶ 37.) Yang claimed on one occasion that Plaintiff refused seizure treatment when in fact Plaintiff was incoherent. Yang left Plaintiff unattended when he was likely to injure himself without medical assistance. Yang made no effort to obtain a protective helmet or neurological consultation.
NKSP medical officials failed to provide for continuity of care upon Plaintiff's May 2011 transfer to SATF and failed to explain to SATF officials the medical and medication needs of Plaintiff.
Defendants Olemeko, Salinas, Mata and Doe I intentionally delayed summoning medical response to Plaintiff's seizures and prevented inmates from providing aid. Plaintiff suffered a seizure in the presence of Defendant Mata in May 2011. Mata did nothing, leaving Plaintiff with no medical attention. He suffered a seizure in the presence of Defendant Salinas in July 2011. Salinas ordered Plaintiff's cell-mate to stop assisting Plaintiff. Defendant Rodriguez was present when Plaintiff had a seizure in October 2011. Rodriguez stated that Plaintiff was a "pain in the ass" and a "problem" because of his medical condition and that he wanted Plaintiff "out of his prison so someone else can deal with [him]." (ECF No. 15 at ¶ 75.)
Defendants Mata, Williams, Villasenor, and Olemeko intentionally withheld Plaintiff's anti-seizure medication and disbursed it at incorrect times. Mata, in June 2011, refused to allow Plaintiff out of his cell to obtain his anti-seizure medication. Defendant Olemeko slammed the medication window closed when Plaintiff approached in June 2011. Defendant Villasenor refused to give Plaintiff medication on August 24, 2011. Defendant Williams responded to Plaintiff's request that phenobarbital be administered on a regular schedule by stating that "we disburse medications on our time." (ECF No. 15 at ¶ 61.)
Defendants Vigarino and Williams intentionally pointed flashlights at Plaintiff without any legitimate penological purpose and in order to trigger seizures.
Plaintiff received an SATF chrono for a lower tier and bunk and a protective helmet in May 2011. However, Plaintiff did not receive his helmet until August 12, 2011.
Defendant Doe I advised a counselor in October 2011 that Plaintiff's seizures should not be treated as an emergency. Plaintiff was referred to psychiatric counseling for pseudo-seizures even though he was epileptic and had no history of mental health issues.
Plaintiff was not seen by a medical specialist until June 2011, when he was seen by a neurologist. The neurologist advised that Plaintiff had sustained traumatic brain injury and had abnormal activity on the right side of his brain.
Defendants (other than CDCR) violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment and medical indifference, failing to adopt policies, train personnel, and provide Plaintiff with care and ...