United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND ECF, 16 THIRTY (30) DAY DEADLINE
Michael J. Seng Judge
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.
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.
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. §
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).
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).
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.
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.
claims may be summarized as follows:
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.
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.
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
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
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.
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.
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
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 ...