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Asjes v. NKSP Medical Cmo

United States District Court, E.D. California

October 15, 2014

ALLEN ASJES, Plaintiff,
v.
NKSP MEDICAL CMO, et al., Defendants.

FINDINGS AND RECOMMENDATION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM [ECF No. 22]

DENNIS L. BECK, Magistrate Judge.

I. Background

Plaintiff Allen Asjes ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On March 19, 2012, Plaintiff filed his Complaint in the Northern District of California. ECF No. 4. On June 28, 2012, the case was transferred to this Court. On March 13, 2013, the Court issued an order dismissing the Complaint for failure to state a claim. Plaintiff was granted leave to file a First Amended Complaint. On March 25, 2013, Plaintiff filed a First Amended Complaint. The Court issued a Findings and Recommendation on September 30, 2013, which recommended dismissal of the First Amended Complaint for failure to obey a court order and failure to state a claim. On November 12, 2013, Plaintiff filed objections and moved for leave to file a Second Amended Complaint ("SAC"). On November 21, 2013, the Court granted Plaintiff's motion and vacated the Finding and Recommendation. Plaintiff filed his SAC on January 2, 2014. 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. Id . § 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." Id . § 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 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id . (quoting Twombly , 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Second Amended Complaint

Plaintiff was incarcerated at an unstated facility in the custody of the California Department of Corrections when the events giving rise to this action occurred. Plaintiff names as Defendants: NKSP chief medical officer; and A Liberstein, M.D.

Plaintiff alleges the following. In 2008, Plaintiff was tested for tuberculosis ("TB"). He was notified upon reading of the test that he tested positive for TB and the reading was "(12)mm."[1] Plaintiff was informed that his TB code per CDCR policy was "32."[2] The medical staff stated that additional tests would have to be performed, including chest X-rays, hepathic tests, liver function tests, and thyroid tests. Plaintiff submitted to every test. Plaintiff states he was not educated on medical facts that would provide him with the knowledge necessary for consent to treatments.

On January 9, 2009, medical staff took Plaintiff's medical history. Plaintiff informed staff that he was "TB Code 32, " which according to Plaintiff means that Plaintiff tested positive for TB in the skin test, but negative in the chest X-ray. Plaintiff states he was then forced to submit to an order to accept a new TB skin test. The skin test confirmed Plaintiff was TB Code 32.

Plaintiff then presented before Defendant A. Lieberstein, M.D., for evaluation of Plaintiff's overall medical condition. Defendant Lieberstein reviewed Plaintiff's medical file with him. Defendant Lieberstein stated that because the TB test was positive, he was obligated to follow CDCR protocols. Plaintiff states Lieberstein did not elaborate on his medical concerns. Rather, Lieberstein informed Plaintiff that he would be placed on a course of treatment involving "INH treatment."[3] Plaintiff was told he could either undergo INH treatment or be quarantined. Plaintiff states he had been previously advised that due to his hepathic status, he was not to be given INH medications. Plaintiff opted to undergo the INH treatment rather than be quarantined. Plaintiff states his health was placed in peril due to the INH medications. Plaintiff underwent partial INH treatment, and then taken off the treatment because Plaintiff's body was not reacting properly and his condition was worsening.

Plaintiff requests as relief: monetary and punitive damages and declaratory relief.

III. Analysis

A. Linkage and Rule 20 of the Federal Rules of Civil Procedure

Plaintiff names as Defendant the NKSP chief medical officer. Plaintiff however fails to make specific allegations against the NKSP chief medical officer. To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles , 442 ...


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