United States District Court, E.D. California
BRANDON E. BJERKHOEL, Plaintiff,
ROBERT B. SCHARFFENBERG, et al., Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND ORDER
DENYING PLAINTIFF’S REQUEST FOR A PRELIMINARY
INJUNCTION (ECF No. 1) THIRTY DAY DEADLINE TO AMEND
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
Brandon E. Bjerkhoel, a prisoner proceeding pro se and in
forma pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 on April 11, 2016. (ECF No. 1.)
Plaintiff’s complaint is before the Court for
screening. Plaintiff has consented to Magistrate Judge
jurisdiction in this case. (ECF No. 8.) No other parties have
appeared in the action.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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. §
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 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)),
and 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 factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of 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). 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), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
is currently incarcerated at California State Prison in
Corcoran, California (“CSP-Corcoran”) where this
claim arose. He brings this action against Dr. Robert G.
Scharffenberg and Physician’s Assistant C. Ogbuehi
(“Defendants”), both employed by the California
Department of Corrections and Rehabilitation
(“CDCR”) at CSP-Corcoran, in their personal and
official capacities. Plaintiff alleges Defendants violated
his right to be free from inhumane conditions of confinement
under the Eighth Amendment by denying him adequate medical
treatment for his Hepatitis C virus (“HCV”).
allegations may be summarized as follows:
has HCV and stage 1 cirrhosis of the liver. Left untreated,
HCV can lead to severe cirrhosis, liver cancer, and the need
for a liver transplant. Furthermore, individuals with HCV
face a higher risk of developing insulin resistance and heart
disease. In January 2014, Plaintiff began to
experience pain in his joints, tiredness, cramps, flu-like
symptoms, darkening of the urine, and extreme pain. He also
began to experience depression and anxiety.
Plaintiff sought help from the medical staff, he was told he
did not qualify for treatment under CDCR policy because he
would soon be eligible for parole and because CDCR only
approved treatment for prisoners who had advanced to stage 3
or 4 cirrhosis. Plaintiff believes stage 3 or 4 cirrhosis is
indicative of liver cancer. Plaintiff believes if he were to
wait until stage 3 or 4 for treatment, he will have already
suffered irreversible liver damage.
March 14, 2014, Dr. Scharffenberg examined Plaintiff in
response to a 602 Plaintiff filed. Plaintiff told Dr.
Scharffenberg he was “still having abdominal pain due
to Hep C” and wanted treatment. Dr. Scharffenberg did
not prescribe pain medication, nor start a treatment course
for HCV. Dr. Scharffenberg told Plaintiff that the
“guidelines for treatment should change, ” at
which point Plaintiff might be able to receive treatment.
believes he is not receiving treatment because of its high
cost. He states one 12 week course of treatment costs $94,
500.00 and 24 weeks costs $189, 000.00. He states there is no
medical reason why he cannot receive treatment.
seeks an injunction requiring Defendants to provide Plaintiff
with medication to treat his HCV and pain. Plaintiff also
seeks compensatory and punitive damages.