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Flowers v. Davey

United States District Court, E.D. California

July 14, 2017

RUPERT FLOWERS, Plaintiff,
v.
DAVE DAVEY, et al, Defendants.

          SCREENING ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No. 10) THIRTY (30) DAY DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. 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).

         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. 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.

         II. Plaintiff's Complaint

         Plaintiff 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 State Prison.

         Plaintiff 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 medical care).

         Plaintiff 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.

         In 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.

         On June 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.

         Throughout 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.

         Plaintiff 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.

         On July 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.

         Plaintiff 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.

         Plaintiff 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 ...


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