United States District Court, E.D. California
MARK D. FOLEY, Plaintiff,
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,
Mark D. Foley is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
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.
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.
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.
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.
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
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.
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.
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.
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.
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 ...