United States District Court, E.D. California
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR
FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF (ECF NO. 1)
THIRTY DAY DEADLINE.
Angee Burrell is a state prisoner appearing pro se and in
forma pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. Plaintiff has consented to magistrate
jurisdiction pursuant to 28 U.S.C. §
636(c)(1). Currently before the Court is
Plaintiff's complaint, filed on August 2, 2016. (ECF No.
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
complaint must 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 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must demonstrate that each named defendant
personally participated in the deprivation of his rights.
Iqbal, 556 U.S. at 676-677; Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” fall short of satisfying the
plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
is a state inmate in the custody of the California Department
of Corrections and Rehabilitation (“CDCR”). The
events at issue here occurred when Plaintiff was incarcerated
at Kern Valley State Prison (“KVSP”). Plaintiff
names the following individuals as defendants: Ruslan
Lozovoy, a nurse practitioner at KVSP; Jeff Sao, a primary
care provider at KVSP; S. Bozarth, a health specialist at
KVSP; M. Spaeth, Chief Physician at KVSP; Karen Brown, Chief
Executive Officer (“CEO”) of KVSP; T. Kubicki,
CEO of KVSP; Karen Brown, MAOM, CCHP/CEO at
KVSP; J. Lewis, CDCR Deputy Director at
California Correctional Health Care Services
(“CCHCS”); S. Rimbach, AW/ADA Coordinator at
KVSP; B. Kemp, Health Care Correctional Analyst at CDCR/KVSP;
E. Perez, Correctional Counsel II (A) at KVSP; John Dovey,
CDCR Director at CDCR; Evelyn Matteuci, CCHCS Analyst at
CDCR/CCHCS; Michael Knowles, CDCR CAMU at CCHCS; Cathy
Etchebehere, CDCR-CAMU at CDCR/CCHCS; Andrea Moon, CDCR-OLA
at CCHCS; Nashea Jackson, CDCR-OLA at CCHCS; Lori Zamory,
CDCR-OACC at CCHCS; Ned Fluet, Attorney General co-counsel;
Bryan Kao, O.A.G. co-counsel; Sharon Garske, O.A.G.
co-counsel; Ed Swanson, court expert; Trina Hirsig; Michael
Mueller, who is employed at CDCR Office of Legal Affairs;
Carrie Stafford, who is employed at CDCR Office of Legal
Affairs; Mike Knowles; Jay Goldman, employed at the Office of
the Attorney General; Janelle Smith, who is employed at the
Office of the Attorney General; J. Todd, Appeal's
Coordinator at KVSP Appeal's Office; Don Meier, CDCR
Deputy Director at CDCR; and John Does 1-20. Plaintiff sues
all Defendants in their official and individual capacities.
alleges as follows: he has been deaf/hearing impaired since
he arrived at San Quentin State Prison (“San
Quentin”) on April 10, 2002, and was diagnosed by Dr.
M. Trina while he was at San Quentin. On April 24, 2015, Plaintiff
arrived at KVSP and “[t]he CDCR 1845 Section D Showed
plaintiff's Status [sic].” In May 2015, Plaintiff
was seen by Defendant Lozovoy, a nurse practitioner, about
the hearing aid defectiveness, but Defendant Lozovoy was only
concerned about the new arrival examination. When Plaintiff
tried to speak, Defendant Lozovoy stated, “[h]e did not
want to hear nothing I had to say, ” and Plaintiff was
8, 2015, Plaintiff received a letter from the Prison Law
Office that someone from there was going to visit him. On
June 15, 2015, he was interviewed by Amber Norris, monitor
and investigator. Ms. Norris noticed that Plaintiff's
hearing aid needed repair. On June 15, 2015, Ms. Norris and
Plaintiff jointly submitted a CDCR 1824 Form. On June 24,
2015, the CDCR 1824 Form was denied and Plaintiff was denied
an inmate interview. Plaintiff also states that the 1824
appeal was approved with modification and that he was
instructed to complete a CDCR 602-HC-Appeal.
9, 2015, Plaintiff submitted a CDCR 602-HC-Appeal. On July
16, 2015, he received a rejection notice from Defendant Todd
at the Health Care Appeals Office that he had to name the
provider or provide enough information to process the appeal.
22, 2015, Plaintiff was examined by Dr. Dileo, who then put
in an order to have Plaintiff's hearing aid be fixed. On
July 23, 2015, the physician request for service was denied.
August 14, 2015, Plaintiff resubmitted the CDCR 602-HC-Appeal
with a written explanation expressing why he disagreed with
the second screen out.
August 24, 2015, Plaintiff was seen by Defendant Bozarth, who
broke Plaintiff's health care appeal into three parts
beyond the scope of the screening process defined in the
rules and regulations to keep Plaintiff's health care
appeal from going forward and being addressed.
August 26, 2015, Defendant Sao denied Plaintiff's appeal
that had been broken up. On August 27, 2015, Plaintiff
received from Defendant Sao a CDCR 7410 Form and a new CDCR
1824 Form, which removed Plaintiff from the DPP Code DNH.
Plaintiff also received a PCP progress note that he was
denied treatment. On September 8, 2015, Plaintiff received in
the mail from Defendant Lozovoy a CDCR 7410 form and CDCR
1845 form that he was removed from the DPP Code DNH.
October 2, 2015, Corene Kendrick, a staff attorney at the
Prison Law Office sent an advocacy letter on Plaintiff's
behalf to Defendant Dovey and Defendant Matteuci. On October
6, 2015, Anjuli Branz at the Prison Law Office received a
letter from Plaintiff and an update of his medical condition.
October 8, 2015, Defendant Brown, CEO, denied Plaintiff's
health care ...