Lacy Charles Black v. Delano Regional Medical Center

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND ECF, 16 THIRTY (30) DAY DEADLINE

          Michael J. Seng Judge

         Plaintiff Lacy Charles Black is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 8.) No other parties have appeared in this action.

         On July 1, 2015, Plaintiff filed his first civil rights complaint in the United States District Court for the Northern District of California. (ECF No. 1.) The case was transferred to this Court on July 20, 2015. (ECF No. 5.) On August 18, 2015, the Court issued an order dismissing Plaintiff's complaint and granting leave to amend. (ECF No. 11.) Plaintiff requested, and was granted, two extensions of time to file an amended complaint. (ECF Nos. 12 & 13, 14 &15.) Plaintiff filed the instant first amended complaint on December 3, 2015. (ECF No. 16.) Plaintiff's first amended complaint is before the Court for screening.

         I. 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, malicious, " or 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).

         II. PLEADING STANDARD

         Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

         To state a claim under § 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. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987).

         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 Atlantic 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. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

         III. PLAINTIFF'S ALLEGATIONS

         Plaintiff's claims arose at Kern Valley State Prison ("KVSP"), where he remains incarcerated. He names the following Defendants in their individual and official capacities: Martin Biter, Warden of KVSP; Bahram Ghaffari, Chief Executive Officer of Delano Regional Medical Center (DRMC); Bruce Peters, Chief Executive Officer of Mercy Hospital in Bakersfield; Sandra Lopez, Chief Medical Officer of KVSP; KVSP Medical Doctors I. Patel, David G. Smith, Larry A Dileo, Tony M. Deeths, J. Akanno, and R. Water; KVSP Physician's Assistant C. Ogbuehi; KVSP Nurses J. Palomino, B. John, Orlando Regino, D. Ramos, M. Becina, L. Moreno, H. Ducusin, T.K. Camp, and E.C. Garrovillo; KVSP Health Care Appeals Coordinator K. Farquhar; KVSP Chief Executive Officer R. Michael Hutchinson; KVSP Deputy Director J. Lewis; KVSP Chief Physician/Surgeon M. Spaeth; and Jojo Cachola, George Conger, Darwin N. Valdez, and Vladimir Skorohod of DRMC. Plaintiff also names unidentified Defendants "0/100." Plaintiff brings claims for Eighth Amendment cruel and unusual punishment, Eighth Amendment "due diligence, " negligence, and medical malpractice.

         Plaintiff's claims may be summarized as follows:

         On January 29, 2013, Defendants Cachola, Conger, Valdez, and Skorokhod of DRMC took x-rays of Plaintiff's left shoulder while Plaintiff was admitted at DRMC and diagnosed him with a shoulder sprain. On that same day, Drs. Deeths and Dileo of KVSP took x-rays of Plaintiff's left shoulder and concluded that Plaintiff had a "severe posterior dislocation." On January 30, 2013, Drs. Deeth and Akannon again took x-rays of Plaintiff's left shoulder, and again diagnosed Plaintiff with a severe posterior dislocation. On May 10, 2013, Dr. Smith conducted an initial surgical consultation. Plaintiff underwent shoulder surgery on June 6, 2013. Plaintiff alleges that Dr. Smith botched the June 6, 2013 surgery, in that he failed to stabilize and/or reconstruct the humeral head in Plaintiff's left shoulder. After that surgery, Plaintiff's shoulder remained dislocated and his severe pain persisted.

         Between July 14, 2013 and June 10, 2014, Plaintiff submitted nine sick call forms complaining of continuing pain. Physical therapists who had been treating Plaintiff since February 2013 reported that despite his best efforts, Plaintiff showed no signs of improvement On March 27, 2014, Plaintiff underwent an MRI which showed the same posterior dislocation as the January 2013 x-rays. On July 15, 2014, Plaintiff was examined by a neurologist, Dr. Jian C. Lin (not a defendant) of the Kern County Neurological Medical Group. After a neurological test, Dr. Lin concluded that Plaintiff had "mild left ulnar sensory neuropathy" and "deltoid denervation" of the left upper extremity.

         On October 16, 2014, Plaintiff underwent hemiarthroplasty, the surgical implanting of orthopedic hardware into the shoulder to replace the damaged humeral head. Throughout Plaintiff's ordeal, the only medication prescribed by Dr. Patel of KVSP was ibuprofen. Plaintiff's requests for morphine or a similar medication to treat his pain were denied. Plaintiff alleges that Dr. Patel was aware of Plaintiff's numerous sick call forms, the diagnoses of his primary care provider, and the results of Plaintiff March 27, 2014 MRI but still chose not to prescribe a stronger pain medication.

         Plaintiff appealed his lack of treatment at numerous levels within the prison. Defendants Farquhar, Hutchinson, Lewis, and Spaeth were all aware of Plaintiff's medical issues through Plaintiff's health care appeals forms, and none intervened.

         Plaintiff believes Defendants Biter and Lopez, as the supervisory personnel who employed the above-mentioned individuals and contracted with DRMC and Mercy Hospital-Bakersfield, and Lopez, as the Chief Medical Officer of KVSP, are also responsible for his injuries. Likewise, Defendants Ghaffari and Peters, as the presidents of their respective hospitals, are liable for the actions of their employees.

         Between February 20, 2013 and June 10, 2015, Plaintiff submitted numerous sick call forms to the KVSP Nurses complaining of extreme pain, numbness, and other symptoms that gave Plaintiff cause for concern. Because of the delays in properly treating Plaintiff's damaged shoulder, Plaintiff now suffers from bone deformities, cartilage damage, loss and demineralization of the humeral head in his shoulder, and nerve damage. Plaintiff reports he is now disabled.

         Plaintiff requests damages to cover future surgeries and compensate for his mental and physical anguish; injunctive relief in the form of a transfer to an institution where he can receive adequate medical care; and for "the proper personnel" to be "held accountable and penalized."

         IV. ANALYSIS

         Plaintiff claims that Defendants provided inadequate medical care in violation of the Eighth Amendment, that Defendants violated Eighth Amendment "due diligence, " and that Defendants committed "negligence and medical malpractice." There is no Eighth Amendment right to "due diligence." The Court will proceed on the assumption Plaintiff feels Defendants failed to exercise "due diligence" in ...