Thomas v. Ogbehi

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE

         Plaintiff Josh Thomas (“Plaintiff”) is a California state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983.^[1] Plaintiff filed this action on July 10, 2015. He filed a First Amended Complaint on May 5, 2016. He names California Substance Abuse Treatment Facility (“CSATF”) P.A. Ogbuehi, P.A. Byers, R.N. Oder, R.N. Carrasquillo, Dr. Johal, L.V.N. Lamay, L.V.N. Tann, L.V.N. Thomas, D. Smiley, C.M.O. Enenmoh, Dr. Ugwueze, Correctional Lt. Alva, Assoc. Warden Reynoso, L.V.N. Belantes, Correctional Sgt. Beltran, Chief of Health Care Services Zamora and Does 1-4 as Defendants.

         A. SCREENING STANDARD

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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. § 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

         Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         B. ALLEGATIONS IN COMPLAINT^[2]

         Plaintiff is currently incarcerated at the California Medical Facility (“CMF”). The events at issue occurred at CMF and CSATF.

         Plaintiff explains that doctors have determined that he is permanently mobility impaired in the lower extremities, and has back, neck and shoulder injuries, degenerative disc disease, and musculoskeletal disease. From 1986 through 2007, 23 health care provides have imposed physical limitations and work restrictions, including no prolonged walking or standing. As his condition worsened, doctors prescribed “ADA reasonable accommodation appliances, ” such as an eggcrate mattress and upper locker. His DPP code was changed from DMO to DPO, which requires wheelchair use, an eggcrate mattress, wheelchair gloves and a walker.

         In 2010, Defendant Byers, in response to Plaintiff’s grievance, noted that he did not qualify for a back brace or wheelchair gloves as an intermittent wheelchair user.

         In 2011, while at CSATF, Plaintiff was taken to Mercy Hospital for Valley Fever treatment. He was transferred to Corcoran State Prison Hospital to complete five months of treatment. While there, Does 1 and 2 boxed Plaintiff’s personal property and stored his ADA appliances at the Facility B Medical Clinic.

         On May 11, 2011, Plaintiff was released and issued a wheelchair that had been sitting outside the hospital. A torn sheet string was holding the seat and back together, the armrest was taped down, the ball-bearings were rusty, and the wheelchair was very hard to push. As a result, Plaintiff reinjured his back and suffered great pain in his shoulders and neck.

         Upon arrival at Facility B, Plaintiff was rehoused and had to continue to use the old wheelchair to get to the dining hall, medical appointments, etc. His injuries worsened.

         Plaintiff requested the ADA appliances that his doctors had prescribed from Does 1 and 2, but was denied. Defendants told Plaintiff that the Facility B Medical Clinic Staff had lost the wheelchair and other appliances. From May 11 through May 18, 2011, Plaintiff continued to complain to Defendants Lamay and Thomas and asked when his wheelchair would be located. His requests were denied.

         After May 18, 2011, Plaintiff was transferred to Facility F. However, Plaintiff had to use the old loner wheelchair, and had to use his legs to push the wheelchair backwards when his arms, shoulders and neck suffered severe pain and more injuries.

         On May 24 or 25, 2011, while suffering numerous injuries as a result of having to use the wheelchair, Plaintiff missed meals and other appointments. He went to the Facility F Medical Clinic and explained to Defendant Belantes that Facility B had lost his wheelchair, and that the loner wheelchair was causing severe suffering. Plaintiff requested another wheelchair, but Defendant Belantes denied the request, stating, “I’ll call Facility B Medical Staff.” ECF No. 23, at 16.

         On or after June 8 or 9, 2011, Plaintiff returned to Defendant Belantes and asked whether Facility B had located his wheelchair. He appeared to be upset with Plaintiff and stated that they did not have his wheelchair. Plaintiff requested another wheelchair, but was denied. Defendant Belantes told him that he needed to contact Facility B Medical.

         In July 2011, Plaintiff’s condition worsened. He went to Facility F and talked to a different nurse, who told Plaintiff that she was not the regular nurse and to come back later.

         On August 24, 2011, Plaintiff filed a Reasonable Accommodation Request after suffering sores and/or inflammation in his buttocks, back and shoulders. He requested his wheelchair, a cane, an eggcrate mattress, wheelchair cushing, wheelchair gloves and a walker with wheels.

         Prior to October 5, 2011, Plaintiff was called to the Facility F Medical Clinic to see Defendant Belantes. Defendant Belantes stated, “come out back and get your wheelchair, ” but it was not Plaintiff’s wheelchair and was another inadequate loner wheelchair. ECF No. 23, at 17. The wheelchair was too small, hard to push and pulled to the right. Plaintiff suffered serious mental and physical pain.

         On October 5, 2011, Plaintiff was interviewed by Defendant Beltran, who said that Plaintiff received his personal property, a replacement wheelchair and a cane for his medical needs. Defendant Beltran told Plaintiff that he had spoken with Defendant Belantes, who confirmed that he replaced Plaintiff’s wheelchair and cane on May 13, 2011.

         On October 12, 2011, Defendant Beltran and Tann partially granted Plaintiff’s Reasonable Accommodation Request and stated that at the time of the interview, Plaintiff was using a wheelchair. The appeal also noted that Defendant Belantes confirmed that Plaintiff’s wheelchair was replaced on May 13, 2011, and that on October 2, 2011, Plaintiff was seen by Defendant Ogbuehi, who reclassified him from DPO to DPM. As a result of the exam, a wheelchair, eggcrate mattress, eggcrate cushing and gloves were denied.

         Plaintiff alleges that Defendants Beltran, Belantes and Tann falsified the records, because he was rehoused in Facility F on May 18, 2011, using the same old wheelchair issued at Corcoran Hospital. Plaintiff was not on Facility F on May 13, 2011, and when he received his personal property, he was not issued a replacement wheelchair or cane. He was not issued a different wheelchair until October 2011.

         Plaintiff further alleges that Defendants Alva and Reynoso knowingly falsified records “via a copy of Plaintiff’s original Reasonable Modification and Accommodation Request, which was responded to by Defendant Beltran.” ECF No. 23, at 18. However, the request noted, “treat as original, ” and Defendants Alva and Reynoso wrote, “Per the physician’s response worksheet dated 9-20-11, and completed by P.A. Byers, you do not meet the criteria for DPO designation, an eggcrate mattress, eggcrate cushing, or gloves. Furthermore, it states you will benefit from walker use and a walking cane.” ECF No. 23, at 18. Per the September 20, 2011, Comprehensive Accommodation Chrono, “your wheelchair was rescinded and a walking cane and walker were assigned. You were also assigned a bottom bunk and lower housing. . .your Disability Placement Program was changed to DPO to DPM and it was noted that your condition is improved.” Plaintiff’s request for a cane was granted, but the remaining requests were denied. ECF No. 23, at 18-19.

         Plaintiff contends that Defendants Byers, Alva and Reynoso knowingly falsified the records. Specifically, he alleges that Defendant Byers did not complete a worksheet dated September 20, 2011, he was not interviewed by Defendant Alva on October 5, 2011, and Defendant Byers admitted in 2010 that Plaintiff was an intermittent wheelchair user.

         As a result of the above, Plaintiff sought further accommodations from Defendants Carrasquillo, Smiley and Zamora. On or after October 21, 2011, he submitted a Request for Reasonable Accommodation. He submitted requests again in January 2012, regarding the needed ADA appliances and denial of medical treatment. The requests were denied. The ADA Department notified Plaintiff that his appeal no longer warranted processing as an ADA appeal, and was forwarded to the Health Care Appeals Office. The appeal was treated as a disagreement with treatment and was partially granted, but Defendants Carrasquillo and Smiley did not provide any treatment or ADA appliances.

         On February 12, 2011, and again in August 2012, Plaintiff requested his ADA appliances and medical treatment from Defendant Zamora. On both occasions, his requests were denied. Defendant Zamora stated, “at DLR, your appeal was reviewed” and “the content of the appeal, related to Disability Program Placement Verification of mobility impaired without wheelchair (DPM) versus mobility impaired requiring intermittent wheelchair use ...