United States District Court, E.D. California
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR
FAILURE TO STATE A CLAIM (ECF No. 1) THIRTY DAY
Thomas Bodnar is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. Plaintiff has consented to magistrate
judge jurisdiction pursuant to 28 U.S.C. § 636(c) and
Local Rule 302. (ECF No. 6.) Currently before the Court is
Plaintiff's complaint, filed September 21, 2016. (ECF No.
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)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
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” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
is in the custody of the California Department of Corrections
and Rehabilitation (“CDCR”) and is currently
incarcerated at the California Substance Abuse Treatment
Facility, Corcoran. Plaintiff brings this action alleging
denial of medical care while he was housed at Valley State
March 2013 through August 2016, Defendants Maddax, Johnson,
and Sisodia were at one time Plaintiff's primary care
physician. (Compl. 10.) Each of them noted in their progress
notes that Plaintiff complained of sharp pain in his left
shoulder and numbness in the fourth and fifth fingers of his
left hand and that he had a prior shoulder injury. (Compl.
10.) Each of them saw Plaintiff after he requested medical
services stating that his left shoulder pain and numbness was
getting worse. (Compl. 10.) Plaintiff told each of them that
he had been sent to an orthopedic surgeon to determine the
cause of his shoulder pain while he was housed at Ironwood
State Prison. (Compl. 10.) Plaintiff was transferred to VSP
after he had been seen by the orthopedic surgeon. (Compl.
10.) Defendants Maddax, Johnson, and Sisodia did not continue
the care ordered by the orthopedic specialist or provide any
type of alternative care. (Compl. 10.) They did not follow-up
on the orthopedic referrals or recommendations from 2012.
(Compl. 11.) Defendants Maddax, Johnson, and Sisodia each
noted that Plaintiff was continuing to have problems with his
left shoulder and that they would request the services of an
orthopedic surgeon but did not do so. (Compl. at 11.) All
that Defendants Maddax, Johnson, and Sisodia did was continue
to prescribe Plaintiff medications, without ordering any
further testing or specialist referrals to determine the
cause of his pain. (Compl. 11.)
was sent to an orthopedic surgeon in 2015. (Compl. 11.) The
orthopedic surgeon ordered some neurology testing to be done.
(Compl. 11.) If the neurologic testing showed nothing, then
Plaintiff might need other tests or exploratory surgery.
(Compl. 11.) Plaintiff would need to be seen after the tests
were done. (Compl. 11.) Plaintiff had neurologic tests, but
Defendant Sisodia did not return Plaintiff back to the
orthopedic surgeon after that neurology testing was
completed. (Compl. 11-12.) Plaintiff completed a medical
request asking to be sent back to the orthopedic surgeon but
was never sent for a follow up appointment. (Compl. 12.)
Plaintiff was not scheduled follow-up appointments and
contends that he should have been seen for follow-up
appointments sooner than 90 days for his type of medical
complaint. (Compl. at 14.) Plaintiff alleges that the delays
in treatment have caused his condition to worsen and become
more frequent. (Compl. 13.) Plaintiff contends that these
type of delays have caused VSP to be ranked in the bottom 4
of the 33 prisons in a 2016 evaluation of medical services.
saw Defendants Wall and Sanchez more than once for complaints
of sharp pain in his shoulder and numbness in his left hand.
(Compl. 14.) Plaintiff told Defendants Wall and Sanchez that
his condition was getting worse and more frequent. (Compl.
14.) Plaintiff did not see his treating physician for two to
three weeks after seeing Defendants Wall and Sanchez. (Compl.
14.) Plaintiff contends that any reasonable physician would
have seen him for symptoms of sharp needlelike pain in his
shoulder within seven days and having to wait two to three
weeks was improper or unacceptable care. (Compl. 15.)
Plaintiff told Defendants Wall and Sanchez that the
orthopedic surgeon wanted to see Plaintiff after the
neurology tests were completed. (Compl. 15.) Defendants Wall
and Sanchez failed to make sure that Plaintiff went back to
the orthopedic surgeon. (Compl. 15.)
Doe 1 was a physician who treated Plaintiff from March 2016
until May 2016 when Plaintiff moved to D-yard. (Compl. 16.)
Plaintiff never saw Defendant Doe 1 again after he put in a
request to be sent back to the orthopedic surgeon. (Compl.
16.) Plaintiff had an appointment with Defendant Doe 1 but it
was cancelled and Plaintiff was told it would be rescheduled.
(Compl. 16.) However, the appointment was never rescheduled.
Doe 2 worked in the medical services scheduling inmates for
medical services. (Compl. 17.) Defendant Doe 2 did not
schedule Plaintiff to be taken for medical services as
requested and failed to reschedule Plaintiff for appointments
that were cancelled. (Compl 17.)
Doe 3 was Chief Medical Officer at VSP from March 2013 to
August 2016 at VSP. (Compl. 17.) Doe 4 is the Chief Executive
Officer of medical services at VSP from March 2013 through
August 2016. (Compl. 19.) Defendant Doe 3 and Doe 4 failed in
their duties by having inadequate policies and procedures
governing medical care of inmates. (Compl. 18.) The
deficiencies that existed allowed delays in inmates seeing
specialists, rescheduling appointments, policies that govern
follow up visits, utilizing registered nurses for referral to
the treating physician, policies that classify
“emergency”, “urgent, ” or
“routine” care, failed oversight over the
physicians in their duties to limit reschedules and other
deficiencies that caused VSP to be ranked in the bottom four
on the 2016 evaluation. (Compl. 18.)
Doe 5 was Plaintiff's primary care physician on D-yard
from June 2016 to August 2016. (Compl. 19.) Plaintiff did not
see this Defendant after requesting medical services. (Compl.
Doe 6 was a nurse who worked in Central Health from the end
of June 2016 and July 2016. (Compl. 20.) Plaintiff requested
medical services for over three years to try to find out what
was causing his shoulder pain. (Compl. 20.) Plaintiff was
scheduled to see his doctor on the C-yard and was moved to
D-yard. (Compl. 20.) Plaintiff put in a medical request to
see the doctor. (Compl. 20.) About July 5, 2016, Plaintiff
was an add-on to the nurse at Central Health. (Compl. 20.)
Defendant Doe 6 saw Plaintiff and told him that because his
medical request stated it was for pain Plaintiff could not be
referred to the doctor. (Compl. 20.) Plaintiff was advised
that he needed to write a new request without the word pain
in it. (Compl. 21.) As long as the request stated that
Plaintiff wanted to be seen for pain, he would be referred to
the nurse. (Compl. 21.) Plaintiff asked to be evaluated for
pain and referred to the doctor. (Compl. 21.) Defendant Doe 6
stated that it does not work that way. (Compl. 21.) Defendant
Doe 6 tore up Plaintiff's request and told him to put in
a new request. (Compl. 21.) It is against CDCR policy to
destroy medical records. (Compl. 21.)
brings this action alleging deliberate indifference to his
serious medical needs and malpractice under California law.
(Compl. 21.) Plaintiff is seeking monetary relief. (Compl.
reasons discussed below, Plaintiff's complaint fails to
state a cognizable claim for a violation of his
constitutional rights. Plaintiff shall be granted an
opportunity to file an amended complaint to correct the
deficiencies identified in this order.