Bosworth v. United States

          MEMORANDUM AND ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I.

         INTRODUCTION

         On June 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.

         This 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 to amend.^[1]

         Congress 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) (en banc).

         II. ALLEGATIONS OF THE THIRD AMENDED COMPLAINT

         Plaintiff 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.^[2] (Id.).

         On 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.).

         Approximately 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."^[3] (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 blockage."^[4] (Id.).

         On July 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. (Id.) .

         Gross 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).

         A few 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.).

         On June 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.

         In the 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.).

         On June 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. (Id.).

         Since 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) .

         Plaintiff 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).

         Fourth, 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).

         Plaintiff 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. (Id.) .

         III. ...