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Bodnar v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

May 1, 2017

THOMAS BODNAR, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

          ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1) THIRTY DAY DEADLINE

         Plaintiff 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. 1.)

         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)). 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 Cir. 2002).

         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” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff 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 Prison (“VSP”).

         From March 2013 through August 2016, Defendants Maddax, Johnson, and Sisodia were at one time Plaintiff's primary care physician. (Compl. 10.[1]) 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.)

         Plaintiff 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. (Compl 14.)

         Plaintiff 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.)

         Defendant 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. (Compl. 16.)

         Defendant 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.)

         Defendant 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.)

         Defendant 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. 19.)

         Defendant 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.)

         Plaintiff brings this action alleging deliberate indifference to his serious medical needs and malpractice under California law. (Compl. 21.) Plaintiff is seeking monetary relief. (Compl. 9.)

         For the 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.

         III. ...


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