United States District Court, E.D. California
DAMIEN D. OLIVE, Plaintiff,
S. LOPEZ, et al., Defendants.
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
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.)
has declined Magistrate Judge jurisdiction in this case. (ECF
No. 6.) 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 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
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
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 has proven successful in controlling his
seizures. These medications kept him seizure free for over a
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.
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.
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.
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 ...