United States District Court, E.D. California
SCREENING ORDER DISMISSING AMENDED COMPLAINT WITH
LEAVE TO AMEND (ECF No. 9) THIRTY-DAY (30) DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Screening Requirement and Standard
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.)
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.
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).
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).
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.