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Burrell v. Lozovoy

United States District Court, E.D. California

March 24, 2017

ANGEE BURRELL, Plaintiff,
v.
RUSLAN LOZOVOY, et al., Defendants.

          ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF (ECF NO. 1) THIRTY DAY DEADLINE.

         Plaintiff 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).[1] Currently before the Court is Plaintiff's complaint, filed on August 2, 2016. (ECF No. 1.)

         I.

         SCREENING REQUIREMENT

         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 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).

         A 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).

         Prisoners 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.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff 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[2]; 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.

         Plaintiff 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.[3] 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 discharged.

         On June 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.

         On July 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.

         On July 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.

         On August 14, 2015, Plaintiff resubmitted the CDCR 602-HC-Appeal with a written explanation expressing why he disagreed with the second screen out.

         On 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.

         On 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.

         On 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.

         On October 8, 2015, Defendant Brown, CEO, denied Plaintiff's health care ...


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