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Solano v. Perez

United States District Court, E.D. California

April 7, 2015

LIBRADO SOLANO, JR., Plaintiff,
v.
PEREZ, et al., Defendants.

SCREENING ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND (ECF No. 1)

BARBARA A. McAULIFFE, Magistrate Judge.

I. Screening Requirement and Standard

Plaintiff Librado Solano, Jr. ("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 initiated this action on April 9, 2014. (ECF No. 1.) The matter was transferred to this Court on April 29, 2014. (ECF No. 7.) Plaintiff's complaint, filed on April 16, 2014, is currently before the Court for screening.

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).

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.

II. Plaintiffs Allegations

Plaintiff is currently housed at High Desert State Prison in Susanville, California. The events in the complaint are alleged to have occurred at Folsom State Prison and the California Correctional Institution in April and May 2013. Plaintiff names the following defendants: (1) Doe Defendant #1; (2) Doe Defendant #2; (3) Correctional Officer Perez; (4) Correctional Officer Peterson; (5) Correctional Officer Alexander; (6) Correctional Officer Baltran; (7) Correctional Officer George; (8) Dr. Eslami Afshin; (9) Dr. Harold Tate; and (10) Dr. Yin Allan J.

Plaintiff alleges: On April 24, 2013, Doe Defendants #1 and #2 transported Plaintiff from Folsom State Prison to Methodist Hospital for right side inguinal hernia surgery. After waking up from anesthesia and surgery, a nurse stated that the surgeon also repaired the left side, which Plaintiff never had any problems with and was not documented on any medical records. Instead of remaining in the hospital for recuperation, Plaintiff was immediately returned to Folsom State Prison. Upon arrival, Doe Defendants #1 and #2 should have taken Plaintiff to the TTA medical clinic for examination and pain medication, but they placed Plaintiff in a single-man holding cage for Ad-Seg officers to escort Plaintiff to his cell. While in the cage for a long period of time, Plaintiff's pain medication began wearing off.

Defendants Perez and Peterson, Ad-Seg officers, arrived at the holding cage. Defendant Perez told Plaintiff to stand up and turn around so that he could place waist chains and handcuffs on the Plaintiff. Plaintiff complied. The waist chains were put on so tightly that Plaintiff asked for them to be loosened. Defendant Perez ignored Plaintiff and told Plaintiff to back out of the holding cage. As Plaintiff did so, he asked for a wheelchair. Defendant Peterson looked around the area and said there was not one around and they were walking Plaintiff to his housing unit. Plaintiff stated that he needed a wheelchair and he was in no condition to walk because he had just had surgery. Defendants Perez and Peterson told Plaintiff that he had no choice and forced him to walk. After 30 yards, Plaintiff came to some stairs. Plaintiff told the officers that he was hurting and could not proceed. Defendant Perez told Plaintiff that he would help him and gave him a light push. Once Plaintiff reached the bottom of the stairs, he was shaking in agony. Plaintiff was forced to walk another 20 to 30 yards to the Ad-Seg unit, where Plaintiff was forced to walk 3 tiers of stairs. Defendants Perez and Peterson left Plaintiff in his cell in severe pain.

After three to five hours in his cell, Nurse Hernandez was walking by and handing out medication. Plaintiff's cellmate yelled for Nurse Hernandez and asked to speak with him concerning Plaintiff. Plaintiff told Nurse Hernandez that he was in pain, he had surgery early that morning and he had not received any pain medication for recovery. Nurse Hernandez looked in his medication box to see if there was any medication for Plaintiff. Nurse Hernandez stated that there was nothing for the Plaintiff and that Plaintiff should put in a medical request to see the doctor.

From 8:30 to 9:00 p.m., there was a shift change. Officer Perez was passing by Plaintiff's cell. Plaintiff was in severe pain and yelled for Officer Perez. When Officer Perez came to the cell window, Plaintiff explained that he was in pain and needed his pain medication. Officer Perez told Plaintiff to cuff-up so that he could escort him to Ad-Seg medical. On Plaintiff's arrival, Nurse Hernandez asked Plaintiff how he was doing and stated he was trying to reach a doctor. At that point, Officers Alexander and Baltran walked into the medical clinic. Officer Alexander said, "Not this guy again! There's always something wrong with this guy! And a needy person." (ECF No. 4, p. 9.) Officer Alexander was harassing Plaintiff. Officer Baltran interrupted Officer Alexander and asked Plaintiff why he had to go "man down" on their shift. Officer Alexander said that there was no doctor around and they could not do anything. Nurse Hernandez told the officers to stop, that Plaintiff was in medical need, his medical file was lost, Folsom TTA medical clinic did not know he went out for surgery and that is why he wasn't given any pain medication. Plaintiff alleges that Defendant Doe #1 and Defendant Doe #2 failed to process his medical paperwork. Plaintiff was escorted back to his cell for recovery.

On April 25, 2013, Officer George came to Plaintiff's cell for a committee meeting with Warden RM Hill. Plaintiff told Officer George that he had just gotten out of surgery and needed to recover. Officer George told Plaintiff that he did not have a choice. Plaintiff got dressed and was escorted to the committee meeting, but the Warden and the committee were not ready for Plaintiff. Officer George had Plaintiff face the wall and stand for approximately 20 to 30 minutes even though Plaintiff began to shiver due the pain. Officer George ignored Plaintiff. Officers Hahn and Freyance saw that Plaintiff was shivering and asked if he was okay. Plaintiff told them that he had surgery the prior morning, wasn't feeling well and went man-down the night before. Office Hahn told Officer George that Plaintiff should be sitting down, but the door opened for the committee meeting. After the meeting was over, Plaintiff thought that he would be returning to his cell to recover. However, Officer George told Plaintiff that he had another appointment to attend to at the TTA medical clinic, which was 80 to 100 yards of walking. Plaintiff told Officer George that he was not feeling well and could not walk that far. Officer George grabbed Plaintiff's waist chains and forced him to walk down three tiers of stairs. Plaintiff began shivering twice as much. Escort Officer Jones arrived and Officer George left. Officer Jones asked Plaintiff if he was okay. Plaintiff said that he was in a lot of pain and was not able to walk to the TTA medical clinic. Plaintiff requested a wheelchair. Officer Jones said there was no wheelchair around, but that he would call the clinic and tell them that Plaintiff was in no condition to walk that far. A doctor arrived and examined Plaintiff. Plaintiff was then taken to his cell so that he could recover.

A week after the surgery, Plaintiff noticed a swollen bump on the left side of his groin area. He also was experiencing intestinal pain and right-side testicle discomfort. Plaintiff submitted an emergency health care request. A few days later, Plaintiff yelled for Nurse Hernandez and Officer Harris, who were walking by the cell. Nurse Hernandez told Plaintiff to submit another health care request slip.

On May 5, 2013, Plaintiff submitted an emergency 602 appeal because of the lump on his left side groin area. On May 6, 2013, Plaintiff was called to medical. As Plaintiff was being examined by a nurse and Dr. Reddy, he told them about his kidney pains and the bump on the left side groin area. Dr. Reddy thought it could be another hernia and indicated that he would call Plaintiff's surgeon. Plaintiff was escorted back to his cell. About an hour later, escort officers came to Plaintiff's cell door and told him he was leaving the prison to see his surgeon. Dr. Eslami Afshin examined Plaintiff and said nothing was wrong with him. Plaintiff explained to Dr. Afshin that his ride side hernia was fine, but a left side hernia occurred. Plaintiff asked for a proper examination, but Dr. Afshin said there was nothing wrong and left. Plaintiff was then transported back to Folsom Prison.

Plaintiff continued to have severe pains and requested health care services. On May 13, 2013, Plaintiff was examined by nurse, who said Plaintiff had a left side hernia. On May 20, 2013, Dr. Reddy also said Plaintiff had a left side hernia and requested a referral for left side hernia repair surgery. On May 22, 2013, Plaintiff wrote to the Prison Law Office for help getting surgery because he received a response to his 602 appeal stating that his health care hernia injury did not meet the criteria for emergency surgery.

On June 11, 2013, Plaintiff was transferred to the California Correctional Institution. Upon his arrival, Plaintiff notified the medical staff about his left side hernia and testicle pain. Medical staff informed Plaintiff that he would be seen in the medical clinic in a couple of days. Plaintiff filled out a medical request to see the medical clinic.

On June 13, 2013, Plaintiff was taken to the medical clinic and explained his hernia injury and pain. The nurse informed plaintiff that he would receive pain medication that evening, but he did not receive any. Plaintiff submitted another medical request to staff for pain medication.

On June 19, 2013, the Prison Law Office responded to Plaintiff's letter regarding his request for help with surgery. Plaintiff was ...


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