United States District Court, E.D. California
SCREENING ORDER DISMISSING FIRST AMENDED COMPLAINT
WITH LEAVE TO AMEND (ECF No. 10) THIRTY (30) DAY
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Rupert Flowers (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action under 42 U.S.C. § 1983. Plaintiff initiated this
action on September 15, 2016. (ECF No. 1.) Plaintiff has
consented to the jurisdiction of a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 14.)
Plaintiff's first amended complaint, filed on December 6,
2016, is before the Court for screening.
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).
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).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (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, 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.
is currently housed at California Substance Abuse Treatment
Facility at Corcoran, CA. The incidents at issue in this
litigation occurred while Plaintiff was housed in Corcoran
names as defendants: D. Davey, Warden, Corcoran State Prison;
E. Clark, M.D., medical care provider; Rifanna, RN,
registered Nurse; C. McCabe, M.D., Chief Physician and Acting
Chief Medical Officer; and Does 1-10 (persons responsible for
alleges that on December 3, 2014, Plaintiff was assaulted
while handcuffed by correctional officers. On December 4,
2014, plaintiff had an x-ray which determined by physician W.
Ulit, Dr. R. Water, and Dr. Beresgovskaya that Plaintiff had
a right mandibular fracture of the jaw. Plaintiff was
transferred to San Joaquin Hospital and was left there
untreated and then returned to the prison. Plaintiff went to
see Dr. Sisodia on December 5, 2014 complaining of pain and
inability to chew. Dr. Sisodia prescribed a soft food diet
and supplement for 10 days, but plaintiff never received the
prescribed diet and lost 10 pounds. On December 9, Plaintiff
again was x-rayed and found to “still” have a
fractured jaw and was transferred to San Joaquin Hospital.
But on December 10, 2014, Plaintiff was again discharged
without treatment and continued to experience severe jaw pain
and inability to chew.
February, plaintiff began feeling complications in the facial
region such as extreme nasal congestion, loss of taste and
smell, headaches, bad breath and shortness of breath.
Plaintiff saw Dr. Clark on March 19, 2015, and Dr. Clark said
it was just allergies. On April 24, 2015, Plaintiff
complained again to Dr. Clark of the same symptoms, and Dr.
Clark gave him a nasal spray and nothing else. Plaintiff had
to breathe through his mouth for oxygen, and used the nasal
spray, but all his symptoms remained.
8, 2015, Plaintiff again saw Dr. Clark and showed Dr. Clark
information from Dr. Freeman about Plaintiff's fractured
jaw and complications that could set in. Dr. Clark became
angry and accused Plaintiff of just wanting money and that
Dr. Clark said that Plaintiff's symptoms were not related
to a fractured jaw and told Plaintiff to leave.
June 2015, Plaintiff repeatedly complained, through health
care requests, about the same symptoms which were getting
worse. On June 30, 2015, Plaintiff again met with Dr. Clark
and begged for treatment for the fractured jaw and treatment
for the complications. Dr. Clark said that Plaintiff is
normal, and it was all in Plaintiff's mind.
submitted additional health care requests in July and August
2015 requesting medical assistance. Plaintiff submitted
letter to Defendant D. Davey and Chief Physician and Surgeon
C. McCabe about his complications.
9, 2015, Plaintiff saw his mental health counselor who told
him that the Doctors believe it is all in his head. On July
13, 2015, Plaintiff saw Dr. Mathos who said his condition was
serious and ordered antibiotics. Due to constant pain, loss
of sleep, restricted activities, Plaintiff continued to
request medical care but was told it was all in his head,
leaving Plaintiff feeling dejected and suicidal. Plaintiff
went to crisis bed on July 16, 2015. He was given a CT scan
of the facial region and on August 9, 2015 was reported he
had paranasal sinuses with extensive opacification in the
ethmoid air cells. Plaintiff saw Dr. Clark on August 14, 2015
and Dr. Clark did not see compelling risk for urgent care.
Dr. Clark said he would schedule Plaintiff for an ENT
specialist and did not schedule Plaintiff for an urgent ENT
consultation but scheduled it only as routine.
continued to submit medical request forms and letters to the
warden. On October 19, 2015, Plaintiff saw the ENT specialist
Dr. Stillwater who evaluated Plaintiff and ordered another CT
scan of the sinuses and tests to rule out
“allergies.” Dr. Akanno prescribed antibiotics on
October 20, 2015. A CT scan and tests for allergies were
performed on December 7, 2015 which resulted in a report of
“mild/moderate pansinus disease primarily involving the
ethmoid sinuses, and obscuration of the ostiomeatal.”
Dr. Akanno requested that Plaintiff be sent back to Dr.
Stillwater for further treatment. Plaintiff saw Dr.
Stillwater on February 29, 2016, who opined that Plaintiff
does not have any significant allergic disease but that since
the combination of the topic spray, antibiotics or short
burst of steroids are not effective, Plaintiff may be a
surgical candidate for both nasal septoplasty and endoscopic
sinus surgery. On March 7, 2016, Dr. Akanno recommended
surgery as “urgent, ” but reported to Plaintiff
that surgery is expensive and it may not get approved. Dr.
McCabe did not agree with Akanno and sent Plaintiff to Dr.
Kitt on March 15, 2016 who had not reviewed Plaintiff's
medical records and did a 3 second exam and made findings
contrary to the CT scan that Plaintiff did not need surgery.
continued to submit requests for medical assistance and RN
McGrew told Plaintiff that there was not much she could do
for him and that he had an ENT scheduled by June 21, 2016.
Plaintiff was prescribed the same medications by Dr. Clark
that Plaintiff was telling him were not working. Plaintiff
continued to submit requests for medical care and used the
grievance process. Plaintiff also submitted additional
letters to the Warden and Dr. McCabe, Chief Physician, in
April 2016 and attached Dr. Stillwater and Dr. Akanno's
medical reports to the letters and ...