United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
PLAINTIFF’S COMPLAINT OBJECTIONS DUE WITHIN THIRTY (30)
DAYS (ECF NO. 10)
Berg (“Plaintiff”) is a state prisoner proceeding
pro se with this civil rights action under 42 U.S.C.
§ 1983. Plaintiff filed the Complaint commencing this
action on July 16, 2014. (ECF No. 1.) On September 28, 2015,
the Court screened Plaintiff’s Complaint and found that
he had stated a single claim for violation of due process.
(ECF No. 10.) In the screening order, Plaintiff was provided
the option of proceeding on his due process claim or filing
an amended complaint to address the deficiencies in the
Complaint. Plaintiff elected to file an amended complaint
(the “FAC”). (ECF No. 12.) The FAC is now before
the Court for screening.
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).
complaint is required to 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 (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). Plaintiff must set forth
“sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Iqbal, 556 U.S. at 678. While factual
allegations are accepted as true, legal conclusions are not.
state a viable claim for relief, Plaintiff must set forth
sufficient factual allegations to state a plausible claim for
relief. Id. 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. Id.
SUMMARY OF FIRST AMENDED COMPLAINT
is currently incarcerated at Kern Valley State Prison in
Delano, California in the custody of the California
Department of Corrections and Rehabilitation
(“CDCR”). The events at issue in the Complaint
allegedly occurred at the California Correctional Institution
(“CCI”) in Tehachapi, California when Plaintiff
was incarcerated there. Plaintiff names as defendants I.
Guerra (RN), A. Salzman (RN), Dr. Michael Vuong Vu, J.
Schneider, Kim Holland (Warden, CCI), and a Doe Defendant
(RN) (“Defendants”). All of the Defendants were
employed by the CDCR at CCI at the time of the events at
about June 21, 2012, Plaintiff was treated at U.C. Davis. He
told the medical staff he believed he had been poisoned.
Plaintiff began to think the medical staff was holding back
information about his medical condition; one nurse would
start to cry when she looked at him. He asked everyone there
what was wrong with him and they claimed they did not know.
On at least two occasions, after he had tests taken, he heard
the nurses asking the medical staff, “Did they tell
him, did they tell him?” and the response was
“no.” (FAC at 4, ECF No. 12.) They gave him an
injection of water to “flush [his] system, ”
which Plaintiff alleges was to “shut [him] up.”
Id. He later requested that U.C. Davis send him his
medical records, but they sent the records to CCI. The
records do not reflect Plaintiff’s statements to
medical personnel that he believed he had been poisoned.
about June 28, 2012, Plaintiff met with Dr. Bobbala (who is
not named as a defendant). Dr. Bobbala told Plaintiff that he
had tested positive for emphysema at U.C. Davis.
Plaintiff’s blood was drawn for testing, but now the
results and all records of the blood test are
“missing.” Id. at 5. On November 14,
2012, Dr. Bobbala ordered an EKG for Plaintiff. On November
24, 2012, an unknown R.N. gave Plaintiff an EKG and told him
that the nerves in part of his heart are “dead or not
about August 20, 2013, Defendant Vu ordered Oxcarbazepine for
Plaintiff, despite the fact that Plaintiff had told Vu that
he did not want to take any medications to treat
psychological conditions. Plaintiff complained of pain and Vu
suggested a pain medication that is also indicated for the
treatment of psychological conditions, but Plaintiff refused.
Vu then proceeded to suggest three different medications that
doubled as pain and psychiatric medications and Plaintiff
refused each time. Vu informed Plaintiff that he would find
him a suitable medication and returned Plaintiff to his cell.
Plaintiff was given Oxcarbazepine, which Plaintiff took
because he did not realize what it was. The medication caused
Plaintiff to feel tired and sleepy-at one point, he was
sleeping 23 out of 24 hours per day. On October 15, 2013,
Plaintiff met with Vu and told him he thought he was
depressed from the Oxcarbazepine because he was sleeping so
much. Vu did not change Plaintiff’s medication, so
Plaintiff refused to take the medication any longer.
Plaintiff’s symptoms improved thereafter.
of Plaintiff’s medical appointments, one of the medical
staff showed Plaintiff a document in his medical records. The
document stated that Plaintiff had consented to participate
in an experimental drug program involving Oxcarbazepine, even
though Plaintiff had not so consented. At some point,
Plaintiff asked Defendant Schneider to pull the document from
his records, but Schneider refused to look for the document.
She also informed Plaintiff that she had spoken to Vu and
that Vu had told her that there was no such document. One
week later, Schneider acquiesced and looked in
Plaintiff’s medical records for the document. No such
document was found.
point in October or November 2013, Plaintiff was prescribed
physical therapy by an unnamed doctor. Plaintiff alleges that
Defendants Guerra and Salzman falsified a document stating
that Plaintiff refused physical therapy on November 21, 2013,
however, and Plaintiff did not receive the prescribed
therapy. Plaintiff did not discover the document until
January 3, 2014 and immediately requested physical therapy
from Vu. Because his records stated that he had refused
therapy before, his name was placed at the bottom of the
physical therapy waiting list. Plaintiff had to wait many
months for his therapy because of this delay and was in great
pain. Plaintiff has now started physical therapy and the pain
January 21, 2014, Plaintiff was given an EKG by an unknown
nurse. The week after that, he was given another EKG by
Defendant Guerra, who told him that his “heart has not
gotten worse.” When Plaintiff checked his medical
records, however, there was no record of the first EKG and
the date on the second EKG had been changed. Plaintiff
alleges that, as a result of this oversight, he is
“being refused proper medical treatment” and his
“heart pain is getting worse and worse.”
Id. at 8.
alleges that several other records are also missing from his
medical file, including the results of a blood test from June
28, 2012 and an x-ray from August 20, 2013. Plaintiff also
alleges that Defendants have refused to provide him
additional medical diagnostic tests, including chest x-rays,
EKGs, stress tests, or lung tests. They also ...