United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND
GARY S. AUSTIN, Magistrate Judge.
Barry Lamon ("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 filed the Complaint commencing this action on February 28, 2012. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on December 7, 2012, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 11.) On February 13, 2014, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 27.)
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 is required to 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, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc. , 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal , 556 U.S. at 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at the California State Prison-Sacramento in Represa, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR). The events at issue in the First Amended Complaint allegedly occurred at Corcoran State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff names as defendants B. Amrheine (Registered Nurse), Correctional Officer ("C/O") Austin, J. Bandoc (Nurse Practitioner), Dr. E. Clark, L. Shultz (Registered Dietitian), C/O Wilson, and C/O Yzguerra (collectively, "Defendants"). Defendants were all employed by the CDCR at the time of the events at issue. Plaintiff's factual allegations follow.
Prescription for Nutritional Supplement Nutren
Prior to May 3, 2009, Plaintiff had submitted more than one hundred inmate prison grievances and filed more than five civil rights lawsuits against CDCR employees, and thus earned the derogatory description of "legal beagle" among CDCR personnel at CSP. Out of retaliation for Plaintiff's many grievances and lawsuits, C/Os tainted his meals with chemicals that caused him excruciating headaches and esophageal, intestinal, and rectal pain. Plaintiff reported his severe reactions to the Acute Care Hospital in Corcoran more than twenty times. In response to his continuing complaints, Corcoran mental health staff declared Plaintiff delusionally insane and prescribed a wide range of mental health drugs for several years, to no avail. General medical practitioners at Corcoran prescribed an even broader range of medicinal remedies, again to no avail.
On or about May 3, 2009, defendant Dr. Edgar Clark examined Plaintiff and prescribed him a nutritional supplement called Nutren, which was canned and therefore tamper-resistant. Dr. Clark told Plaintiff that he based his decision to issue the Nutren on the grounds that it was the only remedy that had ever worked successfully previously, that it was far less expensive than the majority of the plethora of mental health related and other medicinal approaches that had been used, and its only drawback was more political than medical in nature. Dr. Clark said that the C/Os and their supervisors felt that if "Medical" prescribed it for those inmates who alleged that C/Os were tainting their meals, it would prove a sort of medical staff validation, if not agreement, with their claims against them. Dr. Clark told Plaintiff not to tell any of the other inmates that he was prescribing Nutren, or they would also demand it, and he would discontinue Plaintiff's prescription.
Plaintiff's supervising C/Os became angry about the prescription, because it frustrated their efforts to taint Plaintiff's meals. They began to openly threaten to get the Nutren cancelled. Several of the nurses caved to the pressure, opened Plaintiff's canned Nutren, and tainted it prior to the supplement arriving at Plaintiff's cell.
On May 5, 2009, Plaintiff filed an inmate health care appeal alleging that the LVNs were opening and tainting his Nutren. On or about May 28, 2009, defendant Nurse B. Amrheine heard the appeal and asked Plaintiff to withdraw it. Plaintiff refused and defendant Amrheine said, "Well, fine, if that's where you want to go with this, but you forget that you were only prescribed Nutren as a courtesy based on your issues with Custody.' You shouldn't bite the hands that feed you." (First Amended Complaint, Doc. 27 at 9 ¶20.) About thirty minutes later, LVN Severmilch [not a defendant] passed by Plaintiff's cell and instead of issuing Plaintiff his Nutren, smugly informed him that defendants Amrheine, Bandoc, and Schultz had cancelled the Nutren. These nurses did not have the authority to cancel Dr. Clark's prescription. Out of reprisal for Plaintiff filing the appeal, defendants Amrheine, Bandoc, and Schultz met, discussed, considered the potential threat to Plaintiff's health, safety and well-being, of which they were aware, and intentionally agreed to interfere with Plaintiff's doctor-prescribed medical care. Because of this interference, Plaintiff suffered severe headaches, esophageal, intestinal and abdominal pains, muscle cramps, fright, fear, intimidation, and loss of rights.
On July 16, 2009, Plaintiff filed an appeal alleging that defendants Amrheine, Bandoc, and Schultz' retaliatory cancellation of the Nutren violated Plaintiff's rights under the First Amendment and went against a full medical doctor's orders. Afterward, Dr. Clark saw Plaintiff and reminded him that he had warned Plaintiff not to make waves or he would cancel the Nutren. When Plaintiff objected to the nurses improperly cancelling the prescription, Dr. Clark replied that nevertheless, Plaintiff should not have filed an appeal because they had been doing what they could to help him, and now they felt Plaintiff should just be left on his own to defend against whatever "Custody" did to him. Plaintiff alleges that Dr. Clark, as a medical professional, knew Plaintiff faced a threat of serious injury to his health, but deliberately disregarded it and elected not to provide the Nutren, as a reprisal for Plaintiff filing an appeal against defendants Amrheine, Bandoc, Schultz, and other medical personnel.
Transport to Medical Appointment
Based on Plaintiff's continuing complaints that he was suffering pains after consuming his meals, on or about May 23, 2009, prison medical doctors issued orders for Plaintiff to be examined by an off-site cardiovascular specialist. On or about June 18, 2009, defendants Officers Austin and Wilson, both employed as Corcoran Medical Transportation Officers, arrived at Plaintiff's housing cell at about 6:20 a.m. to take him to the cardiovascular specialist, despite Plaintiff having been issued a gate pass for 8:00 a.m. and having been informed by medical staff that he would leave at 8:00 a.m. Plaintiff was angry that defendants Austin and Wilson elected to begin the transportation so early, which would deprive Plaintiff of a hot breakfast and instead cause him to be issued a bagged peanut butter and jelly sandwich for breakfast. Plaintiff verbally protested and informed the officers that he would file an appeal against them.
Plaintiff complied with all of the officers' instructions and otherwise prepared for transportation. The officers stood outside Plaintiff's cell and Plaintiff was subjected to a strip-search and then dressed in the bright-red paper jumpsuits used by the CDCR during transportation of prisoners. Defendants Austin and Wilson bantered back and forth with C/O's about Plaintiff's threat to file an appeal against them for arriving so early. Austin and Wilson admitted that "the front desk" had told them Plaintiff was a "legal beagle" who was suing "everyone at the prison, " and that they had come early so they "could [bring] him back and, hopefully, pick up a second transport" during work-time hours, and that Plaintiff "ought to be glad to be going, period." (First Amended Complaint, Doc. 27 at 13 ¶37.) Plaintiff's hands and feet were shackled, and he was placed in a security cage in the transportation van.
Defendants Austin and Wilson drove up to the exit gate supervised by defendant C/O Yzguerra, who opened the side door of the van and the security cage, and confirmed Plaintiff's identity. Yzguerra commented to defendants Austin and Wilson, "Wow. He's a real bundle of joy, what's got a bug up his a-?" Austin and Wilson told him that Plaintiff was angry about missing breakfast and was threatening to sue them for arriving too early. They said they didn't know why Medical was sending Plaintiff out, but Plaintiff was a real a-hole who was more likely than not only trying to collect evidence to file appeals. Defendant Austin stated, "Well, f- him. Let's just put his a- back and see if we can pull a tour with as close to eight hours as we can get. Why put up with this sh- for the next four hours?" (First Amended Complaint, Doc. 27 at 14 ¶41.) Plaintiff alleges that defendants Austin, Wilson, and Yzguerra met, discussed, and considered the substantial threat of serious harm that would be posed to Plaintiff's health if they interfered with Plaintiff's doctor's orders to transport Plaintiff to the cardiovascular specialist.
Plaintiff requests monetary damages, attorneys' fees, costs of suit, and declaratory relief.
IV. PLAINTIFF'S CLAIMS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law]... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an ...