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Spencer v. Kokor

United States District Court, E.D. California

May 30, 2018

EDWARD B. SPENCER, Plaintiff,
v.
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

         Plaintiff 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.)

         I. Screening Requirement and Standard

         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); 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 (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).

         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 (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.

         II. Plaintiff's Allegations

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         On September 1, 2015, Plaintiff was seen by medical staff about his inability to walk.

         Plaintiff 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).

         In 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 medical care.

         Dr. 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 ...


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