Hackett v. Fisher

          SCREENING ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 9) THIRTY-DAY (30) DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         I. Screening Requirement and Standard

         Plaintiff Stephen Hackett (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed a consent to proceed before a magistrate judge on May 14, 2015. (ECF No. 4.)

         On June 7, 2016, The Court dismissed Plaintiff’s complaint with leave to amend. (ECF No. 5.) Plaintiff was subsequently granted an extension until July 25, 2016 to amend his complaint. (ECF No. 7.) Plaintiff filed his amended complaint on July 14, 2016. Plaintiff’s amended 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). Plaintiff’s 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).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s 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.

         II. Plaintiff’s Allegations

         Plaintiff is currently incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California. The events in the amended complaint allegedly occurred at Valley State Prison (“VSP”) in Chowchilla, California. Plaintiff names the following defendants: (1) Warden Raythel Fisher; (2) Deputy Director J. Lewis, Policy and Risk Management Services; (3) Inkwinder Singh, M.D.; (4) Chief Physician and Surgeon Dr. K. Toor; (5) Nurse Practitioner L. Stolfus; and (6) Physicians’ Assistant Chetana Sisodia.

         On June 27, 2014, Plaintiff was transferred to VSP from Wasco State Prison (“Wasco”). While at Wasco, he had been approved for a total left knee revision and to have removal of an ABX antibiotic spacer that was supposed to have been removed on January 27, 2014. The approval, Form 7243, was forwarded to VSP and received by Defendant Stolfus on August 20, 2014. Dr. Nikolai Wolfson, M.D., signing off on August 21, 2014. When Plaintiff arrived at VSP, his condition began deteriorating rapidly, and he was subsequently prescribed a four-wheel walker and cane due to the inability to ambulate. Plaintiff suffered from continued oozing at the left knee infection site of a contracted methicillin-resistant staphylococcus aura (MRSA) infection obtained while in custody, and a continuing deterioration of the supporting bone-stalk structure of the left knee.

         On September 4, 2014, Plaintiff was seen by Defendant L. Stolfus, and he inquired as to why his approved and scheduled surgery had not yet occurred. Defendant Stolfus generated another CDCR Form 7243, in which she marked the section for earliest possible release date, and that there was a life-term of imprisonment. Plaintiffs actual release date is November 29, 2018. Defendant Stolfus also wrote in pertinent part, “49 year old male with history of multiple surgeries L[eft] knee . . . MRSA methicillin-resistant staphylococcus aura Tx, Pt. seen by ortho → needs ortho … removal of antibiotics.” (ECF No. 9, p. 10.) The request for services was denied on September 10, 2014.

         On information and belief, it was incumbent on Stolfus to ensure that the inmate information was accurate, and she violated the policies and procedures for inmate medical services by failing to designate the appropriate time frame in which the specialty services should be provided. The designation should have been urgent, not routine. The relevant policies require that if an inmate has been received via intra-system transfer and has had a previously-scheduled appointment or consult, the receiving institution shall ensure the inmate receives the specialty appointment or consult no more than thirty (30) days from the date the procedure was originally scheduled. Policy requires emergency consultations or procedures be provided immediately, and high priority procedures or consultations be provided within fourteen (14) days after the primary care physician’s order. Routine allows for ninety (90) days for the service to be provided. By designating the time frame as routine, Defendant Stolfus as the primary care provider did not provide sufficient notice to the other medical personnel about when the service was required to be provided to Plaintiff As a consequence of Defendant Stolfus’s creation of the Form 7243, the request for services was denied on September 10, 2014.

         On November 12, 2014, Plaintiff once more saw Defendant Stolfus due to complaints of continued left knee pain and inability to walk on the left leg. His infection at the left knee joint was oozing. An antibiotic regime was started and a new brace ordered. Defendant Stolfus also created another Form 7243, at Plaintiff’s request. Again, Defendant Stolfus marked routine as the time-frame. Plaintiff’s request for services was denied on December 4, 2014.

         Plaintiff experienced continued pain and persistent oozing at the left knee joint during December 2014 and January 2015. Plaintiff was then seen by Defendant Singh, M.D. who ordered another antibiotic regimen of treatment. Defendant Singh passed the buck onto Sacramento’s utilization management unit headquarters as the reason the Form 7243 request for services were being denied, even though the forms were stamped denied at VSP. Defendant Singh also suggested to Plaintiff during the visit that it would be better for Plaintiff to transfer to another institution in Chino that was aggressive in rendering treatment. Defendant Singh failed to inform Plaintiff of the general time frame to expect the surgery. On information and belief, Defendant Singh violated policy by failing to review the file before assessing the denial of the Form 7243s. Had Defendant Singh reviewed the file, he would have seen the approved surgery was received from Wasco. Defendant Singh either ignored or failed to review the file.

         From June 24, 2014 through February 2015, Plaintiff continued to suffer pain, oozing at the left knee, atrophy, and worsening bone-stalk deterioration. Plaintiff never saw a physical therapist, can no longer straighten his left knee, and cannot ambulate without assistive devices since arriving at VSP. Plaintiff was granted long-term opiate treatment for pain relief by the pain management committee, but was given nothing more effective than short-term pain medication and psychotropic medications.

         On February 4, 2015, Plaintiff filed a grievance complaining about the denial of the surgical procedure. On February 28, 2015, Plaintiff’s appeal was partially granted by Dr. Virk. On March 6, 2015, Plaintiff was seen by a general practitioner, who submitted a request for an offsite consultation, and stated surgery should have been done a year and a half ago. On March 13, 2015, Plaintiff was seen by Defendant Singh, who prescribed oral antibiotics to treat the continued oozing staph infection.

         On March 19, 2015, Plaintiff was transported to Madera Community Hospital, and was seen by Cyril Rebel, M.D. The clinical report stated that oral antibiotics were only suppressing the infection, were of no benefit, that Plaintiff should be seen by a surgeon with the ability to do very complex revisions, and should be seen by an infections disease and internal medicine doctor. The report further stated that Plaintiff would need prolonged therapy and revision of the knee, that the risk of infection is quite high, that with recurrent infection, Plaintiff may need an amputation, and he would benefit from treatment sooner rather than later.

         On March 20, 2015, Plaintiff was seen by Dr. Wong at VSP, who agreed the surgery should have been done long ago, and he needed to come off antibiotics.

         On April 10, 2015, Plaintiff was sent to an offsite consult with another orthopedic specialist. He concurred with the March 19, 2015 assessment and was shocked that Plaintiff was made to bear weight and walk on the spacer for another two years. He ...