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Burrell v. Lozovoy

United States District Court, E.D. California

April 19, 2017

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

          ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF (ECF NO. 14)

         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). (ECF No. 10.)

         On 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.)

         Currently before the Court is Plaintiff's first amended complaint, filed on April 10, 2017. (ECF No. 14.)

         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”). 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”).

         Plaintiff 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.

         Plaintiff 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.

         When 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.

         While 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 State Prison.

         In May 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.

         On July 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 denied.

         On 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 ...


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