United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE
TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF
(ECF NO. 14)
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). (ECF No.
August 2, 2016, Plaintiff filed the original complaint in
this case. (ECF No. 1.) On March 27, 2017, the Court
dismissed the original complaint for failure to state a
cognizable claim upon which relief may be granted, with leave
to amend. (ECF No. 13.)
before the Court is Plaintiff's first amended complaint,
filed on April 10, 2017. (ECF No. 14.)
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”).
Plaintiff is currently incarcerated at the Correctional
Training Facility in Soledad, California. The events at issue
here occurred when Plaintiff was incarcerated at Kern Valley
State Prison (“KVSP”).
names the following individuals as defendants: Pfeiffer,
Warden at KVSP; Ruslan Lozovoy, a nurse practitioner at KVSP;
Jeff Sao, a primary care provider at KVSP; S. Bozarth, a
health specialist at KVSP; Dr. Dileo, a medical doctor at
KVSP; and Karen Brown, Chief Executive Officer
(“CEO”) of KVSP.
alleges as follows: Plaintiff was the victim of a drive-by
shooting in 1986. Among other injuries, he was shot in the
head and lost hearing activity in the left hear. The incident
allowed only little hearing in the left ear.
Plaintiff arrived at San Quentin State Prison (“San
Quentin”) in 2002, he was seen by a physician and
diagnosed by Dr. M. Trina. Soon after that, Plaintiff was
fitted for a hearing aid.
at California Men's Colony (“CMC”) State
Prison in 2015, Plaintiff's hearing aid was going out. On
April 24, 2015, Plaintiff was transferred to Kern Valley
2015, Plaintiff was seen by Defendant Lozovoy, a nurse
practitioner, about the hearing aid not working. After
Defendant Lozovoy examined Plaintiff, Plaintiff tried
speaking so that he could tell Lozovoy that his hearing aid
was not working. Defendant Lozovoy stated, “he did not
want to hear nothing I had to say” and that
“nothing I said matter” and Plaintiff was being
rushed during that whole new arrival visit.
22, 2015, Plaintiff was examined by Dr. Dileo. Plaintiff
explained that his hearing aid was not working. Dr. Dileo
then put in an order to have Plaintiff's hearing aid
repaired or replaced. On July 23, 2015, the request was
August 24, 2015, Plaintiff was seen by Defendant Bozarth,
after Plaintiff had taken steps to put in a 602 appeal to get
his hearing aid fixed or replaced. Defendant Bozarth made
attempts to impede Plaintiff's 602 appeal. Defendant
Bozarth interviewed Plaintiff and then broke Plaintiff's
health care appeal into three parts, beyond the scope ...