United States District Court, E.D. California
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
Introduction, Screening Requirement and Standard
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.)
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.
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).
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).
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.
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.
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.
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.
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
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
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.
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.)
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
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.
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.
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 ...