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Messer v. Mettry

United States District Court, E.D. California

October 14, 2014

CECIL MESSER, Plaintiff,
L. METTRY, et al., Defendants.


BARBARA A. McAULIFFE, District Judge.

I. Screening Requirement and Standard

Plaintiff Cecil Messer ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff initiated this action on July 12, 2013. On June 12, 2014, the Court dismissed Plaintiff's first amended complaint with leave to amend. Plaintiff's second amended complaint, filed on July 14, 2014, is currently before the Court for screening.[1]

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).

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)(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, 1964-65 (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).

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal , 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal , 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss , 572 F.3d at 969.

Bivens actions and actions under 42 U.S.C. § 1983 "are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens. " Van Strum v. Lawn , 940 F.2d 406, 409 (9th Cir.1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens , 403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor.

II. Plaintiff's Allegations

Plaintiff currently is housed at the Beckley Federal Correctional Institution in Beaver, West Virginia. The events alleged in his complaint occurred while Plaintiff was housed at the United States Penitentiary Atwater ("USP-Atwater") in Atwater, California. Plaintiff names the following defendants: (1) L. Mettry, Administrator of Health Services Department USP-Atwater; and (2) Irene Ahlstrom, BOP Administrator of the West Coast Pharmacy Doctors (located in the Federal Correctional Institution ("FCI") in Phoenix, Arizona).

Plaintiff alleges as follows: In February 2010, Plaintiff was diagnosed with "Esophageal Reflux" by doctors at United States Penitentiary Coleman I. The illness causes stomach ache, acid reflux and irritation of the throat and other organs. Plaintiff was prescribed Zantac 150 MG TB, which was increased to 300 MG TB of Renitidine HCI in January 2011. The doctors instructed Plaintiff to use this medicine daily to combat his stomach condition and Plaintiff was included with the "Chronic Care Clinic Patients."

On or about June 28, 2011, Plaintiff arrived at USP-Atwater. During his medical intake, a thirty-day prescription for Ranitidine 300 MG was issued for Plaintiff's reflux disorder. On July 6, 2011, Dr. Jon F. Franco reaffirmed and documented Plaintiff's status as a Chronic Care patient.

In July 2011, Defendant L. Mettry refused to continue serving Plaintiff with any of these medications, even when Plaintiff was claiming that his stomach condition was worse and he could not sleep well. Plaintiff wrote many requests for the medication to Defendant Mettry. The physician assistant assigned to Plaintiff by USP-Atwater, Rodrigo Ogues, approved Plaintiff's medications a number of times, but the orders were rejected by Defendants Irene Ahlstrom and L. Mettry.

Plaintiff asked Defendant Mettry why she was depriving Plaintiff of his medications. Defendant Mettry said, "Go buy it by yourself from the Commissary!" (ECF No. 9, p. 2.) Plaintiff then demonstrated that he was a chronic care patient. Defendant Mettry did not care. Plaintiff was at USP-Atwater for about 28 months, but the institution only provided his medication for thirty days. Plaintiff went more than six months without receiving any of his medication.

On or about August 30, 2011, Plaintiff was scheduled for a medical appointment with Rodrigo Ogues. Mr. Ogues noted, "Needs EGD for his Chronic Epigastic [sic] pain, which is ...

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