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Gornick v. PBSP-Medical/CDCR

United States District Court, N.D. California

November 6, 2014

PAUL APOLLO GORNICK, Plaintiff,
v.
PBSP-MEDICAL/CDCR, et al., Defendants.

ORDER OF SERVICE AND PARTIAL DISMISSAL Re: Dkt. Nos. 6, 7

KANDIS A. WESTMORE, Magistrate Judge.

Plaintiff, a state prisoner incarcerated at Pelican Bay State Prison ("PBSP"), has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights by the PBSP Medical Department and PBSP medical staff. Plaintiff has consented to the jurisdiction of the undersigned United States Magistrate Judge over this action. He has paid the $400 filing fee.[1] Plaintiff also filed a motion for clarification of the Court's previous order in which the Court indicated that Plaintiff had a "need for special glasses, " rather than a need for prescription eyeglasses that helps Plaintiff with his visual impairment and migraine headaches. Doc. No. 6. The motion for clarification is granted, and the Court clarifies that it did not intend to misstate Plaintiff's allegations of his need for prescription glasses that alleviates his visual impairment and migraine headaches.

I. DISCUSSION

A. Preliminary Review of Complaint

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff can show that the defendant's actions both actually and proximately caused the deprivation of a federally protected right. Lemire v. Cal. Dept. Corrections & Rehabilitation, 756 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of section 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. Under no circumstances is there respondeat superior liability under section 1983. Lemire, 756 F.3d at 1074. Or, in layman's terms, under no circumstances is there liability under section 1983 solely because one is responsible for the actions or omissions of another. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984). A supervisor may be liable under section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). It is insufficient for a plaintiff only to allege that supervisors knew about the constitutional violation and that they generally created policies and procedures that led to the violation, without alleging "a specific policy" or "a specific event" instigated by them that led to the constitutional violations. Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012).

B. Plaintiff's Claims

The following is a summary of the allegations in Plaintiff's complaint. Plaintiff was issued prescription eyeglasses when he was housed at Corcoran State Prison. The prescription glasses alleviated Plaintiff's visual disturbance and migraine headaches. On May 16, 2013, PBSP Medical Staff confiscated Plaintiff's prescription eyeglasses. Plaintiff submitted numerous health care requests for treatment for his vision problem and migraines, but they were unanswered.

On May 16, 2013, Licensed Vocational Nurse (LVN) and Medical Appliance Coordinator Lambert[2] confiscated Plaintiff's prescription eyeglasses. LVN Lambert said that Plaintiff's eyeglasses were not allowed because they were tinted. Plaintiff told LVN Lambert that he suffers from a visual disturbance which causes migraine headaches and that the glasses reduce the severity and frequency of the migraines. LVN Lambert asked Plaintiff if he had documents to verify this and Plaintiff said, "yes." However, after LVN Lambert reviewed the documentation, he said to Plaintiff, "you should have thought of that before pissing people off." Plaintiff repeatedly told LVN Lambert that he needed his glasses to alleviate his visual disturbance and that he had been issued that prescription by the Corcoran Medical Department. LVN Lambert responded that PBSP did not recognize the prescription from Corcoran. LVN Lambert's actions caused Plaintiff wanton pain which affected his ability to undertake his activities of daily living.

Plaintiff advised Dr. Ikegbu, at the PBSP Medical Clinic, many times of Plaintiff's need for prescription glasses to alleviate his visual impairment and migraine headaches. However, Dr. Ikegbu never responded. Dr. Ikegbu wrote that he was denying Plaintiff sunglasses, not prescription glasses. Dr. Ikegbu never physically examined Plaintiff or spoke with Plaintiff before denying him prescription glasses.

Dr. Sayer is the Chief Medical Officer at PBSP and supervises Dr. Ikegbu. As the head of medical operations, Dr. Sayer has the duty to see that Plaintiff received adequate medical care and he failed in this responsibility.

Dr. Jacobsen is Dr. Ikegbu's direct supervisor. On June 28, 2013, Dr. Jacobsen conducted a first level review of Plaintiff's medical grievance regarding Dr. Ikegbu's failure to treat Plaintiff's medical condition. Instead of responding to Plaintiff's complaint, Dr. Jacobsen stated that there was no reason "to maintain sunglasses." Dr. Jacobsen's contention that Plaintiff requested to keep a pair of Rayban sunglasses is false. She had a duty, at the least, to test Plaintiff's eyeglasses to verify if they were prescription glasses.

Maureen McLean, Chief Medical Executive ("CME") is also Dr. Ikegbu's supervisor. On September 13, 2013, CME McClean conducted the second level review of Plaintiff's medical grievance. CME McClean had additional evidence Plaintiff had submitted regarding his need for prescription glasses. Plaintiff also submitted a declaration from George Horan, a Catholic priest in Los Angeles who ordered the eyeglasses for Plaintiff with the prescription issued by the Corcoran ...


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