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Foley v. Lozovoy

United States District Court, E.D. California

April 4, 2017

MARK D. FOLEY, Plaintiff,
v.
RUSLAN LOZOVOY, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS AMENDING COURT'S MARCH 15, 2017, ORDER AND FINDING COMPLAINT APPROPRIATE FOR SERVICE AS TO CERTAIN DEFENDANTS AND CLAIMS AND DISMISSING REMAINING DEFENDANTS AND CLAIMS [ECF NOS. 11, 13, 14]

         Plaintiff Mark D. Foley is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         I.

         PROCEDURAL BACKGROUND

         On March 15, 2017, the Court found that Plaintiff's first amended complaint stated a cognizable claim for deliberate indifference to a serious medical need against Defendants R. Lozovoy, S. Lopez, E. Vitto, E. Ramirez, H. Ducusin, C. Triesch, and one Doe Defendant. In that order, as pointed out by Plaintiff in his motion for clarification filed April 3, 2017, the Court inadvertently failed to state or find that Plaintiff also stated a cognizable claim for deliberate indifference against Defendant Mason as well as the other Defendants. In his April 3, 2017, filing Plaintiff indicates that if the Court finds that Plaintiff states a cognizable claim against Defendant Mason as well as the other identified Defendants, Plaintiff is agreeable to proceeding against only those Defendants for deliberate indifference and dismissing all remaining Defendants and claims. Because the Court finds that Plaintiff's first amended complaint states a cognizable claim against Defendant Mason as well as the other Defendants, the Court will recommend this action proceed on Plaintiff's deliberate indifference claim only and dismiss all remaining claims and Defendants.

         II. SCREENING REQUIREMENT

         The Court is required to screen Plaintiff's first amended complaint and dismiss the case, in whole or in part, if the Court determines it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). 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)), and courts “are not required to indulge unwarranted inferences, ” Doe I v. Walmart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

         Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff's claims must be facially plausible to survive screening, 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; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678.

         III.

         COMPLAINT ALLEGATIONS

         Plaintiff names Correctional Officer Mason, Nurse Practitioner Ruslan Lozovoy, Chief Medical Executive Sherry Lopez, Licensed Vocational Nurses E. Vitto and E. Ramirez, Registered Nurses Orlando Regino and H. Ducusin, Supervising Nurse C. Triesch, and Does 1 through 10, as Defendants.

         Prior to July 11, 2015, Defendants Lopez and Triesch instituted a practice and policy at Kern Valley State Prison (KVSP) that medical personnel, including the named Defendants, were to treat every inmate complaining of pain as faking his symptoms in order to gain pain medication to get high. Further, no inmate complaint of pain was to be treated unless and until the inmate was able to prove to medical personnel and the named Defendants that their symptoms were real and in need of medical attention.

         On July 11, 2015, shortly after lunch, Plaintiff began to feel ill and began to experience abdominal pain. Plaintiff informed his cellmate that he was not feeling well and was going to lie down and rest. Plaintiff attempted to rest but the pain continued to increase. At approximately 3:00 p.m., the pain had worsened and Plaintiff began to vomit.

         As the evening progressed, Plaintiff continued to vomit and his abdominal pain had become severe. Plaintiff could do nothing but lie on his bunk in severe pain.

         On July 12, 2015, at approximately 5:00 a.m., Plaintiff's cellmate flagged down Defendant officer Mason. He explained to Defendant Mason that Plaintiff was in medical distress and needed immediate medical attention. Defendant Mason asked Plaintiff what was wrong, and Plaintiff who was on his bunk, curled in a ball, holding his abdomen, stated “I have severe abdominal pain and have been vomiting since the afternoon. I need medical attention.” Defendant Mason stated that Plaintiff would have to wait until 6:00 a.m. because there was nothing she could do until then, but she would notify the medical department. Plaintiff objected stating, “I'm in severe pain. I need medical help right now.” Defendant Mason stated, “You'll have to wait until 6:00 a.m., ” and walked away.

         Defendant Mason deliberately delayed summoning medical assistance for Plaintiff because her shift was ending at 6:00 a.m. and she did not want to do the paperwork for a medical emergency. Defendant Mason failed to take steps to ensure that Plaintiff receive the needed medical treatment, despite her knowledge of Plaintiff's extreme medical distress.

         On July 12, 2015, at approximately 6:10 a.m., Plaintiff still had not been called to the medical department, so Plaintiff's cellmate called the control booth officer and informed him that Plaintiff was in extreme medical distress and that Defendant Mason was supposed to have informed second watch officers of Plaintiff's need for emergency medical attention. The control booth ...


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