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Gann v. Kokor

United States District Court, E.D. California

July 15, 2019

NATHANIEL MARCUS GANN, Plaintiff,
v.
DR. W. KOKOR, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS FOURTEEN-DAY DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Nathaniel Marcus Gann (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action under 42 U.S.C. § 1983. On July 11, 2018, the Court screened Plaintiff's complaint and granted him leave to amend. (ECF No. 21.) Plaintiff's first amended complaint, filed on August 30, 2018, is currently before the Court for screening. (ECF No. 24.)

         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).

         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.

         I. Plaintiff's Allegations

         Plaintiff is currently housed at Valley State Prison in Chowchilla, California. The events in the complaint are alleged to have occurred at the California Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California. Plaintiff names the following defendants: (1) Dr. Winfred Kokor; (2) Dr. J. Enenmoh, Chief Physician and Surgeon; (3) Dr. C. Cryer, Chief Executive Officer; (4) CSATF/CDCR; (5) Dr. Nastran Hashemi; (6) CME/CMO Godwin Ugwueze; (7) Dr. Ngozi Igbinosa; (8) D. Roberts, RN; (9) Stronach, RN; (10) Villasenor, LVN; (11) L. Arietta, nurse; (12) M. Pacheco, nurse; and (13) Does 1, 2 and 3, CSATF nurses. Plaintiff asserts claims for cruel and unusual punishment regarding his medical needs, and state tort claims for medical malpractice and res ipsa loquitur.

         Plaintiff alleges that he has pancreatic atrophy. In December 2014, Plaintiff was housed at CSATF in Facility E and was assigned Dr. Kokor as his primary care physician.

         On January 3, 2015, without having met Plaintiff, Dr. Kokor prescribed SUMAtriptan and levalbuterol tartrate. Plaintiff is allergic to SUMAtriptan, which causes “sensory ephasia.” On January 13, 2015, Plaintiff met with Dr. Kokor and raised concerns about his neurological symptoms, asthma, hearing, and significant, worsening abdominal pain. Dr. Kokor prescribed Topamax and SUMAtriptan. Plaintiff informed Dr. Kokor that he was mildly allergic to SUMAtriptan and moderately to severely allergic to Topamax, causing “sensory ephasia” and urine retention respectively, which was why Plaintiff was no longer taking them. Dr. Kokor stated that it was not a real side effect, and said, “So what you can't pee.” (ECF No. 24 at 14.) When Plaintiff asked about his abdominal pain, Dr. Kokor opined that it was only heartburn and prescribed Ranitidine. Plaintiff told Dr. Kokor that the pain was greatest when he tried to eat and it caused vomiting. Dr. Kokor said, “If it hurts to eat, then don't eat.” (Id.) Dr. Kokor then prescribed ibuprofen and instructed Plaintiff to leave. Dr. Kokor reportedly did not perform any evaluation.

         On March 10, 2015, Dr. Kokor re-prescribed SUMAtriptan. Plaintiff was called to medical and told to take the medication.

         On March 16, 2015, Dr. Kokor re-prescribed SUMAtriptan. Plaintiff was called to medical to take the medication.

         On March 25, 2015, Plaintiff submitted a Health Care Services Request form for pain, drowsiness, and stomach problems. The complaint was received by RN Stronach. Plaintiff met with RN Stronach the following day and expressed his concerns. Plaintiff believed the cause was his gastrointestinal problems, which had intensified, causing him to become ill when eating, nausea and vomiting, and insatiable hunger. Plaintiff also had light-headedness, dizziness, fatigue and lack of energy. RN Stronach reportedly made light of Plaintiff's complaints and stated, “So let me get this straight, you get tired during exercise?” (Id. at 15.) Plaintiff explained that was not the case and emphasized his inability to eat without nausea or vomiting. RN Stronach mocked Plaintiff and left the room allegedly to speak with Dr. Kokor. RN Stronach instructed Plaintiff to take ibuprofen. Plaintiff believed that Dr. Kokor ordered routine blood work.

         On March 28, 2015, Dr. Kokor reviewed and re-prescribed medication.

         On April 9, 2015, Plaintiff provided a blood sample for evaluation. The results were reported on April 10, 2015, and Dr. Kokor received them on April 12, 2015. The sample revealed that Plaintiff's blood was fairly healthy.

         On April 13, 2015, Dr. Kokor authored a Notification of Diagnostic Test Results, noting that the results were essentially within normal limits.

         On April 21, 2015, Plaintiff met with Dr. Kokor, who did not conduct an examination. Plaintiff expressed his concern regarding the numerous pills he was being told to take. Dr. Kokor said, “Then don't take them and refuse treatment.” (ECF No. 24 at 16.) Plaintiff asked Dr. Kokor for help and reported that he could not eat and it hurt across his back and stomach. Plaintiff also expressed difficulty urinating because of the Topamax. Dr. Kokor said, “You don't want to take it because it is UHT heat medication.” (Id.) Plaintiff then explained that ibuprofen was only making his back and stomach pain worse. Dr. Kokor said, “I don't care. All inmates are liars; you are a liar.” (Id.) Dr. Kokor then stated that Plaintiff had a little heartburn. He also stated that he could see Plaintiff's acne and runny nose, which he could treat. Plaintiff was on the verge of tears because he was convinced he was dying. When Plaintiff asked for instruction and assistance with his inability to eat or drink and his lack of energy, Dr. Kokor instructed him to eat a piece of candy. Dr. Kokor denied Plaintiff's request to see a specialist, and prescribed ibuprofen and SUMAtriptan.

         On June 29, 2015, Plaintiff again met with Dr. Kokor and said that he had been coughing up a thick, black, chunky substance (blood). Dr. Kokor said it was natural to cough up blood, but Plaintiff told Dr. Kokor that the treatment was not working. Dr. Kokor told Plaintiff he could refuse treatment and leave. Plaintiff tried to explain that he was in distress, but Dr. Kokor called him a liar and said Plaintiff was only trying to get drugs. Dr. Kokor did not want to talk any more with Plaintiff and directed correctional staff to escort Plaintiff out of medical. Dr. Kokor again prescribed ibuprofen, Ranitidine, and SUMAtriptan.

         On July 21 and 22, 2015, Dr. Kokor re-prescribed medication.

         On September 2, 2015, Plaintiff again met with Dr. Kokor. Plaintiff's temperature and pulse were above normal, but Dr. Kokor refused to address these issues. Plaintiff told Dr. Kokor that he was suffering from significant abdominal pain. Dr. Kokor instructed Plaintiff to drink more water. Dr. Kokor reportedly ignored Plaintiff's symptoms and said Plaintiff was fine. He planned to refer Plaintiff for a contact lens fitting, which was later cancelled. Plaintiff asked Dr. Kokor to evaluate him, explaining that the medications were making him worse not better. Plaintiff also said that it was not heartburn or back pain, but stomach to kidney pain. Dr. Kokor reportedly stated that he was the doctor and where he was from, Plaintiff would die. Dr. Kokor then had custodial staff escort Plaintiff out of medical. Dr. Kokor re-prescribed the same medication.

         On October 28 and 29, 2015, Dr. Kokor reviewed and re-prescribed Plaintiff medication.

         On December 20, 2015, Plaintiff's gastro-intestinal/abdominal pain intensified. He went to medical, but was told to return on Monday by Doe 1.

         On December 21, 2015, Plaintiff went to medical and was instructed to return later. When Plaintiff later returned, he was told that he would be called out when medical had time. Plaintiff's condition continued to worsen, but he was never called out by Doe 1.

         On December 22, 2015, Plaintiff went to medical and was instructed to return to his assigned housing. Plaintiff insisted that he be seen. Doe 2 told Plaintiff that the doctor would not see him.

         On December 23, 2015, Plaintiff was gravely ill and had been unable to consume water for over 24 hours. Plaintiff again went to medical and was turned away by Doe 3. Plaintiff was told to put in a slip and he would be seen within 5 days.

         Plaintiff submitted a Health Care Services Request Form and indicated it was an emergency, citing vomiting, vertigo, loss of extremity sensation and loss of consciousness. The form was turned in to Doe 3, who scoffed and placed the request in the box. Plaintiff informed Doe 3 that he needed to see a doctor and it was an emergency. Doe 3 told Plaintiff to wait until he was called out.

         That same day, Plaintiff went to chow at his assigned time. He was accompanied by other inmates who assisted him to walk. While at the dining hall, Plaintiff lost the capacity to walk or stand. He was picked up by other inmates and carried to correctional staff. Correctional staff instructed the inmates to carry Plaintiff to the gym where medical was currently operating.

         After being carried to the gym, Plaintiff was placed onto a small armless chair. Doe 3 stated, “I told you, go away-we'll call you in a few days.” (Id. at 20.) Plaintiff responded, “I can't walk. I can't stand. I can't feel my body.” Doe 3 turned away from Plaintiff and left. Sometime later, Plaintiff began to vomit blood and bile. He was given a trashcan. After vomiting, Plaintiff fell to the floor, knocking his head and beginning to choke. Doe 3 stated, “I don't give a f[***], he can lay there and die.” (Id.)

         Correctional staff entered the gym, saw Plaintiff on the floor and instructed him to rise. Plaintiff was unable to comply. Correctional staff then asked if they were going to check Plaintiff or if staff had to hit the alarm. Doe 3 then came over and placed a blood pressure machine on Plaintiff. The first three attempts resulted in an error. Doe 3 then had Plaintiff held upright to get a reading. Plaintiff was placed back onto a chair that had been moved so that Plaintiff could lean against the wall. At that time, Plaintiff began to heave, fell to the floor and lost consciousness. He later awoke on a gurney.

         Plaintiff's vitals revealed that his temperature was approximately 3 degrees above normal, his heartrate was 50% higher than normal and he had pain and measurable symptoms in his abdomen. Plaintiff was evaluated by Dr. Scharffenberg, who sent Plaintiff via ambulance to the emergency room at Mercy Hospital. Prior to transport, he was given intravenous fluids for dehydration.

         Upon arrival at the hospital, an ultrasound revealed abnormalities in Plaintiff's abdomen. A CT scan with contrast revealed pancreatic atrophy, particularly of the pancreatic head and ulcinate process. Plaintiff also had abnormal bilirubin.

         On December 24, 2015, Plaintiff met with a specialist, Dr. Rajeev Krishan. Dr. Krishan ordered an esophagogastroduodenoscopy, which revealed systemic disease, including a hiatal hernia, gastritis, and duodenitis.

         On December 25, 2015, Plaintiff advanced from IV feeding to clear fluids. Dr. Mushtaq Ahmed, who was in charge of Plaintiff's care, spoke to Plaintiff about his illness, tests and results. A CAT scan revealed pancreatic atrophy resulting from a chronic illness. Plaintiff's stomach and upper intestines also were swollen and bleeding, which had prevented Plaintiff from being able to eat or drink, and there was a herniation of the connective tissue. Plaintiff was instructed to be careful with his diet and should avoid fatty and ...


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