Olive v. Lopez

         ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S REQUEST FOR A PRELIMINARY INJUNCTION AND A TEMPORARY RESTRAINING ORDER (ECF No. 1) FOURTEEN DAY OBJECTION DEADLINE THIRTY DAY DEADLINE TO FILE AMENDED COMPLAINT

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff Damien D. Olive, a prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 29, 2016. Plaintiffs complaint is before the Court for screening. (ECF No. 1.)

         Plaintiff has declined Magistrate Judge jurisdiction in this case. (ECF No. 6.) No other parties have appeared in the action.

         I. Screening Requirement

         The 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. § 1915(e)(2)(B)(ii).

         II. Pleading Standard

         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 (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. at 678.

         Under 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.

         III. Plaintiff’s Allegations

         Plaintiff is currently incarcerated at Kern Valley State Prison (“KVSP”) in Delano, California, where the acts giving rise to his complaint occurred. He brings this action against Chief Medical Officer (“CMO”) Dr. S. Lopez, Chief Physician Dr. M. Spaeth, and Physician's Assistant C. Ogbuehi (“Defendants”). Plaintiff alleges Defendants violated his right to be free from inhumane conditions of confinement under the Eighth Amendment by denying him adequate medical care to treat his seizure disorder.

         Plaintiff's allegations may be summarized essentially as follows:

Plaintiff has suffered from seizures since a 1995 motor vehicle accident. His condition has been well-documented since he entered the California prison system in 2002. Left untreated, the disorder could lead to severe disability or premature death.

         Over the past eleven years, Plaintiff has been prescribed a number of different medications to control his seizures, including Dilantin, Depakote, Keppra, and topiramate. Only a combination of the drugs gabapentin and oxcarbazepine^[1] has proven successful in controlling his seizures. These medications kept him seizure free for over a year.

         On December 22, 2015, Plaintiff had a clinical appointment with Ogbuehi, his primary care provider (“PCP”). Plaintiff advised Ogbuehi that his then-current prescription of gabapentin and oxcarbazepine was the only medication combination that successfully controlled his seizures. Ogbuehi told Plaintiff he would present a treatment plan to the California Correctional Health Care Services (“CCHCS”) Institutional Utilization Management (“IUM”) committee, chaired by Defendant Lopez, on December 23, 2015 to determine if Plaintiff could continue to receive gabapentin or if it would be discontinued immediately or over time. According to Ogbuehi, Dr. Lopez did not believe gabapentin was a suitable medication for seizures. Plaintiff asserts that several other prison health care providers, including a neurologist and Ogbuehi, agreed gabapentin was the best treatment for Plaintiff. Plaintiff alleges Dr. Lopez is not a board certified neurologist and not trained in neurology. He claims that it is a deviation from policy to take such a treatment decision from Ogbuehi and give it to the IUM committee.

         On December 23, 2015, Plaintiff's building nurse told Plaintiff that Ogbuehi had reduced Plaintiff's gabapentin dose from 3600 milligrams daily to 1700 milligrams for one week after which time it was to be discontinued entirely. Dr. Lopez directed this decision because he believed gabapentin was too easily traded between inmates. On January 19, 2016, Dr. Jeff Sao, a “delegate” of Dr. Lopez, interviewed Plaintiff and wrote a memorandum stating gabapentin was not FDA approved for use in generalized seizure disorders such as Plaintiff's. Plaintiff believes this memorandum was written as justification for Dr. Lopez ordering Ogbuehi to discontinue Plaintiff's gabapentin. Plaintiff states gabapentin is in fact FDA approved to treat generalized seizure disorders if prescribed in conjunction with other antiepileptic medications.

         Since the cessation of his gabapentin, Plaintiff has submitted four Health Care Services Request Forms (“CDCR 7362”) to the facility triage nurse, Jennifer German. German told Plaintiff to stop submitting the forms because there was nothing she could do.

         Plaintiff alleges he has not been prescribed a substitute for gabapentin and oxcarbazepine by itself will not control his seizures. Since Plaintiff's gabapentin was discontinued, Plaintiff has ...