Hernandez v. Federal Bureau of Prisons

          SCREENING ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS (ECF No. 1) THIRTY (30) DAY DEADLINE

         I. Introduction, Screening Requirement and Standard

         Plaintiff Jose Lopez Hernandez is a former federal prisoner proceeding pro se in this action brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff has consented to magistrate judge jurisdiction. (ECF No. 14.)

         Plaintiff initiated this action on March 30, 2015. Plaintiff’s complaint was originally filed in the United States District Court for the Southern District of Indiana, Terre Haute Division. Plaintiff was housed at the United States Penitentiary, Terre Haute (“USP Terre Haute”) at the time he filed this action. Subsequently, this action was transferred to this Court on the grounds that the events at issue allegedly occurred at or near Atwater, California, while Plaintiff was incarcerated at the United States Penitentiary in Atwater (“USP Atwater”). (ECF No. 5.)

         Plaintiffs complaint 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). Plaintiffs 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).

         While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiffs 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.

         Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiffs constitutional rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor.

         II. Plaintiff’s Allegations

         Plaintiff is a former federal prisoner. The events alleged in Plaintiff’s amended complaint occurred while he was housed at various federal penitentiaries. Plaintiff names the following defendants: (1) the Federal Bureau of Prisons (“BOP”); (2) H.A. Riso, Jr., Warden, at USP Atwater; (3) Officer Saragosh, Special Investigative Services (“SIS”) Officer, at USP Atwater; and (4) Officer Estrada, SIS Officer, at USP Atwater.

         In 2007, Plaintiff was infected with and diagnosed as having Hepatitis C. Lab reports show that Plaintiff had Hepatitis C as early as April 7, 2009. Plaintiff was housed at United States Penitentiary, Florence (“USP Florence”) in 2009, but did not receive treatment. On April 7, 2009, Derick Phillip, M.D., conducted a lab test on Plaintiff, which revealed that he was afflicted with the Hepatitis C genotype. Dr. Phillip refused to order any treatment.

         Plaintiff was housed at USP Atwater for six months in 2011, and the Clinical Director, Jon F. Franco, M.D. refused to treat Plaintiff with medicine called, “Interferon.” All other medical staff at other BOP facilities where Plaintiff was housed fell in concert with this established denial. Interferon could have arrested the disease, if not cured it. Warden H.A. Rios, Jr. had knowledge of Plaintiff’s affliction.

         Defendants H.A. Rios, Jr., Officer Saragosh, and Officer Estrada were told by Plaintiff and others that the Mexican Mafia intended to kill Plaintiff if he went into the prison’s general population. Nevertheless, these Defendants ordered Plaintiff to leave the Segregated Housing Unit at USP Atwater, and enter the prison’s general population. Consequently, on June 7, 2011, members of the Mexican Mafia attacked and tried to kill Plaintiff, inflicting severe and disabling injuries. Plaintiff was stabbed several times and beaten with clubs, etc., injuring his head, brain, hands, wrist and back. Plaintiff remains partially crippled. Plaintiff will require a lifetime of medical care and attention due to his injuries, and will be unable to return to his former occupation as a wage earner and support himself and his family. These Defendants conspired with members of the Mexican Mafia prison gang.

         On January 5, 2012, Plaintiff was transferred to Federal Correctional Complex, Butner (“FCC Butner”), and one month later, on February 3, 2012, was evaluated by Ramsey Roscoe, M.D. It was determined that Plaintiff had Hepatitis C. Plaintiff was provided with a psychological warning as to the effects of treatment for Hepatitis C with Interferon. No treatment was provided. Plaintiff attaches a liver ultrasound dated February 2, 2012, which states that Plaintiff had Hepatitis C, and the liver study was unremarkable. (ECF No. 1-10, p. 5.) Plaintiff struggled with the BOP employees at FCC Butner, attempting to receive treatment for Hepatitis C. It got to the point where the BOP would not sign any medical documents or give a reason on paper saying why this medical procedure was being denied.

         On August 29, 2012, a biopsy was taken at the request of Sielicki Stanislaw, M.D. The biopsy showed “chronic hepatitis, mild activity (grade 1) with possible early bridging fibrosis (stage 1-2).” (ECF No. 1-5, p. 1.)

         On May 14, 2013, Plaintiff received notification of the side effects to the triple therapy which is a prerequisite to the treatment itself, conducted by Allisa M. Marquez, psych. pre-doctorial intern. Then Plaintiff received an administrative note from medical records which showed that Stander Klint, M.D., notified psychology for an updated evaluation dated May 29, 2014. No dual notice of the side effects to treatment are required, and no re-notification of side effects was ever given. Plaintiff was seen on August 14, 2014 by Clinical Director Wilson, but the report was falsified/altered to reflect treatment by Klint, M.D. Neither of them filed a referral for the psychological evaluation. The reports also do not show Hepatitis C. was diagnosed. The neglect and failure to treat Plaintiff caused him to urinate blood.

         On or about September 2013, Plaintiff asked Warden J. Andrews why he was not being administered treatment for Hepatitis C, and the response was, “Oh, you have already started to file your administrative remedies, so you will not be getting any treatment, and don’t you ever bother me again.” (ECF No. 1-1, p. 3.) Warden Andrews and Associate Warden Williams frustrated and stymied Plaintiff’s efforts to exhaust his administrative remedies.

         Plaintiff was transferred to USP Terre Haute on March 21, 2014, and was seen by Clinical Director William Wilson, M.D., shortly after his arrival. Plaintiff requested treatment for his Hepatitis C. He signed off on the Notice to Adverse Effects of the Treatment, which set up a series of denials by the staff at USP Terre Haute. Warden J.F. Caraway asserted that there was not enough evidence for treatment.

         On May 29, 2014, an algorithm for treatment of Hepatitis C was requested by Stander Klint, M.D., and warnings were to be given to Plaintiff, but Plaintiff ...