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Gaines v. Brown

United States District Court, E.D. California

June 7, 2017

MARY LEE GAINES, Plaintiff,
v.
E.G. BROWN, JR, et al., Defendants.

          SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1)

          BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mary Lee Gaines (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint, filed on November 3, 2016, is currently before the Court for screening. (Doc. 1).

         Screening Requirement

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 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, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States 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, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

         Summary of Plaintiff's Allegations

         Plaintiff is currently housed at Central California Women's Facility. The events in the complaint are alleged to have occurred while Plaintiff was housed Central California Women's Facility. Plaintiff names the following defendants: E.G Brown, Jr., Governor; S. Kernon, Secretary Director; S. Lwin, M.D.; Zaragoza, RN; Edward; King CNA; Jackson RN; Ray CNA; R. Mitchell, M.D.; Suedue; K. Miller; T. Boswell, RN; Kane, RN; M. Mirelez, RN; Ririgus CNA; Hotsue, CNA; L. Vance, SRN II; Wurztler; J. Mbeneya, RN; Hoehing, RN; Seretona, CNA; Tylers; Taislyn; Smith; and DOES 1-50. Plaintiff sues each defendant individually and in their official capacity.

         Plaintiff alleges as follows. On July 12 and 13, 2013, Defendant Kane failed to provide Plaintiff with a breathing treatment in a timely manner when Plaintiff was having trouble breathing. She informed Defendant Kane she was having difficulty breathing and Defendant Kane told her that treatments were changed and that breathing treatments would not be given even if a medical emergency. Plaintiff suffered breathing difficulties because she did not get the treatment. (Doc. 1 ¶33.)

         On February 10, 2014, Plaintiff was having an asthma attack and she hit the emergency call light but Defendant Mbeneya failed to respond and did not respond until 35 minutes later letting Plaintiff suffer breathing problems. On February 11, 2014 at noon, Plaintiff again was having breathing problems and hit the emergency call light but Defendant Mirelez failed to respond and responded late and in an untimely manner and told Plaintiff that Defendant Mirelez cannot give Plaintiff a breathing treatment. Plaintiff requested her medications but defendant said that Defendant was not going to give Plaintiff her medications. Later that same day, Plaintiff had another asthma attack and hit the emergency call light but Defendant Mirelez and Hoehing failed to respond and Plaintiff began vomiting. Plaintiff passed out. When Defendant Hoehing appeared Plaintiff told Defendant Hoehing Plaintiff had an asthma attack but Defendant just left and did not do anything. In the evening Plaintiff suffered another asthma attack and hit the emergency light again and again began vomiting. Defendant Seretona responded and took Plaintiff's blood pressure. (Doc. 1 ¶¶33, 34, 35.)

         On February 12, 13, and 14, 2014, Plaintiff had asthma attacks and difficulties breathing and she pushed the emergency call light but Defendant Hoehing, Seretona, Mbenaya, Mirelez, Lwin, Tylers and Mitchel failed to respond and allowed Plaintiff to suffer.

         On July 2, 3, and 7, 2014, Plaintiff asked for her medications and for a breathing treatment from defendant Taislyn, Mbeneya, and Seretona who all began verbally abusing and verbally harassing Plaintiff and failed to give her medications or breathing treatment. (Doc. 1 ¶¶36, 37.)

         On July 7, 2014 at 6:05pm plaintiff had breathing problems and asthma attack and hit the emergency call light but Defendants Mbeneya and Seretona failed to respond. Plaintiff became dizzy and her nose started bleeding. (Doc. 1 ¶38.)

         On February 16, 2015 at 9:30 pm Plaintiff began having breathing problems again and Plaintiff started banging on her door. An officer came and told her to stop banging and left. Plaintiff pushed the emergency call, screamed for help, but no one responded and she began knocking on the door again with her cup until she passed out. (Doc. 1 ¶38B.) On February 16, 2015, Defendant Edward threatened to retaliate against Plaintiff with a room move if Plaintiff complained about this incident.

         On May 12, 15, 18, 21, 26, 27, 28, 29, 30, 31, and June 1, 2, 16, 19, 25 and on July 5, 2015, Plaintiff had medical emergencies of breathing difficulties, shortness of breath and gasping for breath and needed breathing treatments and Plaintiff hit the emergency call light each time but Defendant Ririgus, Hotsue, Vance, Kane and Ray did not respond. Plaintiff suffered chest, throat, lung pain, headaches, vomiting, among other injuries. (Doc. 1 ¶40.)

         On June 16, and 19, 2015, Plaintiff submitted two medical request slips informing Defendant Mitchell and Lwin that Plaintiff was suffering from improper breathing, vomiting, pain, high blood pressure because defendants Ririgus, Hotsue, Vance, Kane and Ray failed to give prescribed medications and breathing treatments. Defendants Mitchell and Lwin ignored the medical request slips and failed to respond. (Doc. 1 ¶41.)

         On June 25, 2015, plaintiff again was having breathing difficulties and Defendants Lwin and Mitchell transferred Plaintiff to Madera General Hospital. When she was released a few days later on June 29, 2015, Defendant Lwing and Mitchell failed to provide Plaintiff an oxygen tank when Plaintiff was having difficulty breathing. (Doc. 1 ¶42.)

         On November 5, 15, 22, 24 and 25, 2015, Plaintiff had breathing difficulties and shortness of breath and she required a breathing treatment and she hit the emergency call. Defendants Miller, Boswell, and Suedue failed to respond. (Doc. 1 ¶43.)

         On November 26, 2015 at 5:00 pm, Plaintiff had breathing difficulties and requested breathing treatment from defendant Suedue but Suedue refused the treatments. At 7:00 pm, Plaintiff had an asthma attack and she pushed the emergency call light and fell to the floor. Defendant Suedue came to the cell but refused to help Plaintiff off the floor. Defendants Miller, Boswell, and Suedue failed to give Plaintiff a breathing treatment. (Doc. 1 ¶44.)

         On November 28, 2015, at 5:45 am, Plaintiff had breathing difficulties and shortness of breath and hit the emergency call light and starting hitting the door with her cup because Defendants Miller and Boswell failed to respond. When they came to the cell, they did ...


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