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Dearwester v. CDCR

United States District Court, E.D. California

July 13, 2016

CDCR, et al., Defendants.



         Plaintiff Frank Lee Dearwester ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 26, 2015, and it was transferred to this Court on March 16, 2015. Plaintiff's original complaint was stricken because it was unsigned, and he filed his First Amended Complaint ("FAC") on June 9, 2015.[1]

         Pursuant to Court order, Plaintiff filed a Second Amended Complaint on May 2, 2016. Plaintiff names the California Department of Corrections and Rehabilitation ("CDCR"), North Kern State Prison ("NKSP") Warden Doe, NKSP, Quest Diagnostics, NKSP doctors Odeluga, Shittu, Krzysiak and Robles and Does 1-99 as Defendants.[2]


         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. 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).

         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, 129 S.Ct. 1937, 1949 (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 that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

         Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.


         Plaintiff is currently incarcerated at Corcoran State Prison. The events at issue occurred while he was incarcerated at NKSP.

         Plaintiff alleges that on August 1, 2013, he was processed through NKSP Medical Diagnostics, where Doe employees collected his bodily fluids for testing. The testing was motivated by the Warden's policy, and performed under the direction and supervision of Defendants Shittu and/or Krzysiak and/or Robles. The test was performed on site by Doe employees of Quest Diagnostics.

         On August 20, 2013, he received a "Notification of Diagnostic Test Results" indicating a positive HIV test result. Plaintiff immediately began having heart palpitations and psychological symptoms, including stress, anxiety, claustrophobia, insomnia, depression and panic attacks.

         Plaintiff attended a follow-up appointment on August 29, 2013, during which the doctor offered no explanation or relief. Instead, he ordered another HIV blood draw, which was taken on August 30, 2013.

         On September 11, 2013, Plaintiff received test results which he contends only caused further trauma. The results indicated that Plaintiff was "being scheduled" and provided "quasi-confirmation" of the prior positive test result. ECF No. 30, at 2.

         Plaintiff was seen by Defendant Krzysiak on October 9, 2013, but he did nothing to alleviate his concerns. Instead, Defendant Krzysiak only cited the negligence of unnamed employees, stating that the results were confusing to him. Defendant Krzysiak told Plaintiff that "they" must have mixed his test results, or specimen, with that of someone else. ECF No. 30, at 3. He suggested that Plaintiff receive another test in six months.

         Plaintiff states that he has undergone multiple HIV blood draws and has not been notified of any positive results. He is not ...

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