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Harrell v. California Forensic Medical Group Inc.

United States District Court, E.D. California

March 21, 2017

JOSHUA NEIL HARRELL, Plaintiff,
v.
CALIFORNIA FORENSIC MEDICAL GROUP, INC., et al., Defendant.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action under 42 U.S.C. § 1983. Plaintiff alleges defendants' failure to provide him with the prescription medication Harvoni constitutes deliberate indifference to his serious medical needs in violation of the Eighth Amendment and Fourteenth Amendments. Plaintiff's fourth amended complaint is before the court for screening. For the reasons set forth below, the court will dismiss plaintiff's complaint and provide him one final opportunity to amend.

         BACKGROUND

         Plaintiff initiated this action in March 2015. Plaintiff attempted to file his original complaint under seal. (ECF No. 1.) That request was denied and plaintiff was given the opportunity to file an amended complaint. (ECF No. 5.) Plaintiff filed a first amended complaint and numerous supplements to it between April and July 2015. (ECF Nos. 9, 10, 11, 14, 15, 16, 17.) On screening, the court permitted plaintiff to file a second amended complaint in order to make his complaint a single document as required by Local Rule 220. (ECF No. 20.)

         Plaintiff filed a second amended complaint on October 28, 2015. (ECF No. 25.) The court found that plaintiff failed to state a cognizable Eighth Amendment claim because he had not shown the treatment doctors chose for his Hepatitis C was “medically unacceptable under the circumstances” or how each of the named defendants was responsible for plaintiff's injuries. (ECF No. 27.) Plaintiff was again given an opportunity to file a third amended complaint.

         Plaintiff filed a third amended complaint and, before it was screened, filed a request to amend that complaint to include a state law claim. (ECF Nos. 28, 30.) That request was granted. (ECF No. 31.) On April 20, 2016, plaintiff filed a fourth amended complaint. (ECF No. 38.) As attachments to the complaint, plaintiff filed a document entitled “Notice of Amendment.” (ECF No. 38-2.) Therein, plaintiff states that he is submitting a second document in compliance with the court's order permitting plaintiff to file a third amended complaint. The second document plaintiff attached is titled “Second Amendment to Claim.” (ECF No. 38-1.) This document is addressed to the “U.S. Department of Justice, Civil Division . . . Torts Branch, Federal Tort Claims Act Staff” and asks that the document be accepted as an amendment to plaintiff's “administrative tort claim.” Plaintiff then repeats his assertion that he is being denied Harvoni.

         Plaintiff has also filed several requests for an injunction to force the prison to provide him Harvoni. Each request was denied. (ECF Nos. 27, 31, 43.)

         SCREENING

         I. Legal Standards

         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).

         A district court must construe a pro se pleading liberally to determine if it states a potentially cognizable claim. The court must explain to the plaintiff any deficiencies in his complaint and accord plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, “[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)). 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 (quoting Bell Atlantic, 550 U.S. at 570). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. Rule 8 of the Federal Rules of Civil Procedure “requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic, 550 U.S. at 555 (citation and internal quotation and punctuation marks omitted).

         II. Allegations of the Fourth Amended Complaint

         Plaintiff alleges claims against defendants at various institutions where he was incarcerated starting in 2014.[1] Plaintiff identifies the following defendants: (1) California Forensic Medical Group, Inc. (“CFMG”); (2) Dr. Negar, a physician with CFMG who worked at the Solano County Jail (“Jail”); (3) Tom Norris, the liaison for the medical department at the Jail; (4) California Correctional Health Care Services (“CCHCS”), the federal receiver for California's prison health care system; (5) Dr. Leo, a physician with CCHCS at Deuel Vocational Institute (“DVI”); (6) Dr. Awatani, a physician with CCHCS at DVI; and (7) Dr. Lee, a physician with CCHCS at Folsom State Prison (“Folsom”).

         Plaintiff states that he suffers from Hepatitis C, genotype 1. The disease has caused him “substantial amounts of chronic pain.” He has been denied the medication Harvoni “or any medication at all to treat [him] for this disease.” Plaintiff states that if the disease is not treated, he will suffer irreparable damage to his liver by scarring and risks liver cancer and liver failure. Plaintiff explains that the FDA approved Harvoni in 2014 to treat Hepatitis C, genotype 1, and it has a 96-99% cure rate. According to plaintiff, defendants have not updated their plan for treating Hepatitis C to include treatment with Harvoni. (Fourth Am. Comp. (ECF No. 38 at 3-4).)

         Plaintiff states that in the summer of 2014, when he was incarcerated at the Solano County Jail, he began requesting treatment for Hepatitis C. Defendants Norris and Negar saw plaintiff at that time, but they refused to provide him any treatment. He was told that he did not meet the CFMG guidelines to receive treatment. (Id. at 4.)

         Plaintiff was transferred to DVI in May 2015. He first saw Dr. Matel, who told him treatment with Harvoni may be possible. However, on June 1, 2015, he saw defendant Dr. Leo, who denied plaintiff's request for that medication. Plaintiff filed a health care appeal of Dr. Leo's denial. Defendant Awatani interviewed plaintiff about his appeal. Dr. Awatani told plaintiff he did not meet ...


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