United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
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.
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.)
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.
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.
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.)
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. §
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).
Allegations of the Fourth Amended Complaint
alleges claims against defendants at various institutions
where he was incarcerated starting in 2014. 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”).
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).)
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.)
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 ...