United States District Court, E.D. California
EDWARD B. SPENCER, Plaintiff,
W. M. KOKOR, Defendant.
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 11) FOURTEEN
(14) DAY DEADLINE
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
Edward B. Spencer (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action under 42 U.S.C. § 1983. On May 14,
2018, the Court screened Plaintiff's complaint and
granted him leave to amend. (ECF No. 10.) Plaintiff's
first amended complaint, filed on May 23, 2018, is currently
before the Court for screening. (ECF No. 11.)
Screening Requirement and Standard
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. §§
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)).
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 (quotation marks omitted); Moss v. U.S. Secret
Serv., 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 (quotation marks omitted); Moss, 572
F.3d at 969.
is currently housed at the California Substance Abuse
Treatment Facility (“CSATF”) in Corcoran,
California, where the events in the complaint are alleged to
have occurred. Plaintiff names Dr. Winfred M. Kokor, a
physician at CSATF, as the sole defendant.
alleges that he suffers from muscle cramps and pain. He has
Type II diabetes, hypertension, vision impairment and muscle
weakness behind both legs. Dr. Kokor has been his primary
care physician from about September 3, 2011 to August 2017,
and is aware that Plaintiff has hypertension, diabetes and
suffers from muscle cramps and pain.
informed Dr. Kokor and Nurse Powell that he was having pain
and muscle cramps behind both legs during chronic care visits
in September 2011 through April 2017. Dr. Kokor reportedly
took no action to ensure that Plaintiff received necessary
medical care. Plaintiff reportedly had been complaining to
Dr. Kokor about pain in his legs and his inability walk from
September 3, 2011 through April 10, 2017.
September 1, 2015, Plaintiff was seen by medical staff about
his inability to walk.
alleges that Dr. Kokor was aware that he had been having pain
and cramping in both his legs since January 2012, but Dr.
Kokor ignored his complaints and caused his condition to
worsen. Dr. Kokor's alleged failure to treat
Plaintiff's complaints of pain and muscle cramping caused
him unstable walking (less than 100 feet).
2017, Plaintiff initiated an ADA Accommodation Appeal
requesting a wheelchair. On June 16, 2017, Plaintiff received
the wheelchair. Plaintiff alleges that Dr. Kokor violated
Plaintiff's Eighth Amendment rights by causing cruel and
unusual punishment with lack of medical care and delaying his
Kokor diagnosed Plaintiff with myopathy, and indicated that
Plaintiff's muscled pain was possibly due to statin side
effect. On June 1, 2017, Dr. Kokor discontinued