United States District Court, C.D. California
MEMORANDUM AND ORDER DISMISSING THIRD AMENDED
COMPLAINT WITH LEAVE TO AMEND
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
23, 2016, Plaintiff Glenn Bosworth, a federal prisoner
proceeding pro se, filed the operative Third Amended
Complaint ("TAC") pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), and, ostensibly, the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12131
et seq., and the Rehabilitation Act of 1973, 29
U.S.C. § 790 et seq. To date, each iteration of
Plaintiff's Complaint has presented a different mix of
Defendants and claims reflecting Plaintiff's
ever-changing and expanding theories of liability. None of
the Defendants named in Plaintiff's original Complaint is
sued in the TAC, and two of the four currently-named
Defendants were not named in any of the prior
versions of Plaintiff's claims. Furthermore, the claims
have morphed from allegations of sexual abuse and excessive
force to assertions of deliberate indifference to serious
medical needs and, in the latest version, violations of
statutes intended to protect the disabled.
constant flux of Defendants and claims is an abuse of the
Court's resources and will not be tolerated indefinitely.
Instead of reviewing Plaintiff s amended complaints simply to
ensure that Plaintiff corrected the deficiencies in the prior
complaint, the Court must undertake a review of new claims
against entirely different defendants based on entirely
different legal theories. The TAC is Plaintiff's fourth
attempt to state a claim. The Court will permit Plaintiff
a fifth and final opportunity to a state civil rights
claim. Plaintiff is expressly cautioned that if the
allegations of the Fourth Amended Complaint do not state a
claim, the Court will recommend that his claims be dismissed,
in whole or in part, under Federal Rule of Civil Procedure
12(b)(6), without further amendment. With this limitation,
for the reasons stated below, the TAC is dismissed with leave
mandates that district courts initially screen civil
complaints filed by a prisoner seeking redress from a
government entity or employee. 28 U.S.C. §1915A(a). This
Court may dismiss such a complaint, or any portions thereof,
before service of process if the Court concludes that the
complaint (1) is frivolous or malicious, (2) fails to state a
claim upon which relief can be granted, or (3) seeks monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b) (1)- (2); see also Lopez v.
Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000)
ALLEGATIONS OF THE THIRD AMENDED COMPLAINT
sues the following four prison physicians: (1) Jaspar
Dahliwahl; (2) Richard Gross; 3) Jose Bueno; and (4) Maria
Dy. (TAC at 4-5) . Dahliwahl, Gross, and Bueno were employed
during the relevant period at the Federal Correctional
Institution in Lompoc, California ("FCI-Lompoc"),
where Plaintiff was housed at the time of the injury alleged
in the TAC. Dy is employed at the Federal Detention Center in
Seattle, Washington ("FDC-Seatac"), where Plaintiff
was transferred approximately two and one-half years after
his injury. Defendants are sued in their individual capacity
under Bivens and in their official capacity under
the ADA and the Rehabilitation Act. (Id.).
April 8, 2012, Plaintiff suffered an injury to his left wrist
during a prisoner softball game at FCI-Lompoc. (Id.
at 5) . Dahliwahl examined Plaintiff on the day of the
accident and concluded that he had suffered only a sprained
wrist. (Id.). Plaintiff asked for an x-ray and was
informed that he "might" be x-rayed later in the
week. (Id. at 6) . After enduring two days of
"severe pain, " on April 10, 2012, Plaintiff
informed the medical staff of his ongoing pain and was given
an x-ray, which showed that Plaintiff's wrist was broken.
(Id.). That same day, Plaintiff was sent to an
off-site medical facility for emergency surgery, which took
place on April 11, 2012. (Id.).
two months after the operation, Plaintiff began noticing that
his left hand and wrist would shake uncontrollably if he
extended his arm, rotated his wrist, or raised his hand above
his head. (Id.). In September 2012, FCI-Lompoc
medical staff requested that Plaintiff be provided physical
therapy. (Id.). In October 2012, a BOP radiology
consultant diagnosed Plaintiff with "Disuse Osteopenia,
" an "irreversible medical condition" that
Plaintiff alleges "must be treated immediately to
interrupt its advancement." (Id.). In November
2012, Plaintiff's outside surgeon diagnosed him with
Reflex Sympathetic Dystrophy and recommended that he be seen
by a neurologist "to provide a sympathetic
16, 2013, Gross examined Plaintiff and made a
"provisional diagnosis" of Reflex Sympathetic
Dystrophy. (Id.). Gross also told Plaintiff that the
BOP had authorized an examination by a neurologist.
(Id.). On August 9, 2013, eleven months after
FCI-Lompoc medical staff had recommended that Plaintiff be
given physical therapy, Bueno denied the request.
examined Plaintiff again on February 20, 2014 and noted that
Plaintiff's shaking had worsened. (Id.). Gross
again diagnosed Plaintiff with Reflex Sympathetic Dystrophy
and told him that he would soon be examined by a neurologist,
which had not yet occurred. (Id.). On April 3, 2014,
an outside neurologist examined Plaintiff, confirmed his
Reflex Sympathetic Dystrophy diagnosis, and told Plaintiff
that his was the worst case of that condition that he had
ever seen. (Id. at 8).
weeks later, on April 20, 2014, Gross recommended that
Plaintiff be authorized for a sympathectomy. (Id. at
8). On the same date, Gross filed a "written medical
order that a '770 transfer' (a medical transfer
within the [FOB]) be initiated to transfer Plaintiff" to
an appropriate facility for the procedure. (Id.).
Dahliwahl approved Gross's sympathectomy recommendation
on April 23, 2014. (Id.).
24, 2014, Gross reduced Plaintiff's "medical care
level" from "Level 2" (chronic care
or serious medical needs) to "Level 1" (normal
status) . (Id. at 9) . In September 2014, Plaintiff
was transferred to FDC-Seatac in Seattle, Washington, but not
pursuant to a 770 transfer.
fall of 2014, medical staff at FDC-Seatac diagnosed Plaintiff
with Osteopenia. In April 2015, Dy told Plaintiff that he had
Osteopenia, for which Plaintiff was prescribed Alendronate.
(Id.) . However, Dy did not tell Plaintiff that he
had "degenerative joint disease" or that his
Osteopenia had been diagnosed thirty months earlier (in
October 2012) at FCI-Lompoc. (Id.). On May 1, 2015,
Dy informed Plaintiff that he had been approved for
"hand surgery." (Id. at 10). However,
Plaintiff has never received the surgery. (Id.).
11, 2015, Dy informed Plaintiff that he had been approved for
a neurologist examination and for occupational therapy.
(Id.). The neurologist confirmed Plaintiff's
Reflex Sympathetic Dystrophy. (Id.). Plaintiff
received only a "single 75 minute non-contact
examination by an Occupational Therapist" on June 29,
2015. (Id.). The Occupational Therapist diagnosed
Plaintiff with a 91% "Disability of the Arm, Shoulder,
and Hand" ("DASH") score. (Id.) .
Plaintiff contends that his DASH score worsened because had
had not been provided physical therapy earlier.
(Id.). The Occupational Therapist recommended that
Plaintiff receive occupational therapy for a six-week course.
(Id.). However, Dy denied the recommendation.
April 2015, when Dy informed Plaintiff of his Osteopenia
diagnosis, Plaintiff has had five seizures marked by severe
chest pains and abnormally low blood pressure levels, even
though his EKG results each time were normal. (Id.
at 11-12) . Plaintiff maintains that the seizures are
connected to the injury in his left arm and wrist.
(Id. at 12) .
raises six claims, each of which he alleges arises under
Bivens, the ADA, and the Rehabilitation Act.
(Id. at 13-16). First, Plaintiff claims that
Dahliwahl is liable for having failed to provide him with an
x-ray until April 10, 2012, two days after his accident.
(Id. at 13). Second, Plaintiff alleges that Gross
(at FCI-Lompoc) and Dy (at FDC-Seatac) are liable for having
failed to prescribe "Alendronate for his then known and
diagnosed serious medical need of Osteopenia."
(Id.). Third, Plaintiff alleges that Bueno is liable
for having denied the FCI-Lompoc medical staff's request
that Plaintiff receive physical therapy. Similarly, Plaintiff
also alleges that Dy is liable for having denied the
Occupational Therapist's recommendation that Plaintiff
receive occupational therapy. (Id. at 14).
Plaintiff alleges that Gross is liable for having failed to
ensure that Plaintiff was seen by a neurologist timely
(i.e., before his actual examination in April 2014),
despite the recommendations by Plaintiff's surgeon in
November 2012 and by Gross himself in July 2013 that he be so
examined. (Id. at 15). Fifth, Plaintiff states that
Dahliwahl and Gross are liable for having failed to ensure
that he be given a sympathectomy, which he has still not
received. (Id.). Sixth, Plaintiff generally claims
that Dahliwahl, Gross, Bueno and Dy are liable because they
denied or delayed the provision of necessary medication,
physical therapy, occupational therapy and a sympathectomy.
(Id. at 16).
seeks declaratory relief and an injunction requiring the BOP
to transfer him to a "medically qualified" facility
and to provide him with physical and/or occupational therapy.
(Id. at 17-18). Plaintiff also seeks compensatory
damages for his physical and mental suffering; the loss of
use of his left hand, wrist, fingers and arm; the loss of
future income; his future medical costs; and the "loss
of consortium to and from his son and daughter."
(Id. at 18) . Plaintiff also seeks punitive damages.