Berg v. Guerra

          FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S COMPLAINT OBJECTIONS DUE WITHIN THIRTY (30) DAYS (ECF NO. 10)

         Jason 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.

         I. SCREENING REQUIREMENT

         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 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. Id.

         To 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.

         II. SUMMARY OF FIRST AMENDED COMPLAINT

         Plaintiff 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 issue.

         On or 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.

         On or 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 working.” Id.

         On or 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.

         Eventually, 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.

         At one 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.

         At some 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 has resolved.

         On 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.

         Plaintiff 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 ...