United States District Court, E.D. California
ORDER FINDING COGNIZABLE CLAIMS AGAINST DEFENDANTS
MIRELEZ AND HOEHING FINDINGS AND RECOMMENDATIONS RECOMMENDING
DISMISSAL OF ALL OTHER CLAIMS AND DEFENDANTS
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
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
first amended complaint, filed on September 13, 2017, is
currently before the Court for screening. (ECF No. 17).
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).
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.
of Plaintiff's Allegations
is currently housed at Central California Women's
Facility (“CCWF”). The events in the complaint
are alleged to have occurred while Plaintiff was housed at
CCWF. Plaintiff names the following defendants: S. Lwin,
M.D.; Zaragoza, 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; and King, CNA.
Plaintiff alleges each defendant was medically indifferent to
her medical needs. Plaintiff sues each defendant individually
and in their official capacity.
alleges as follows. Each defendant is on the medical staff
assigned to CCWF and is responsible for medical treatment and
care of inmates. 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. 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. 17 ¶26.)
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, and
Tylers failed to respond and allowed Plaintiff to suffer.
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. 17 ¶28.)
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 for an hour. (Doc. 17
February 16, 2015 at 9:30 pm Plaintiff began having breathing
problems again and Plaintiff asked Defendant King to tell
Defendant Zaragoza that Plaintiff needed a breathing
treatment. Defendant King failed to tell Zaragoza or respond
and Plaintiff blacked out and lost consciousness and woke up
on the floor. Plaintiff screamed for help. (Doc. 17
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 Defendants Ririgus,
Hotsue, Vance, Kane and Ray did not respond. She hit the door
with a cup to get the attention of Defendants and they did