United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN
CLAIMS AND DEFENDANTS FOURTEEN-DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Nathaniel Marcus Gann (âPlaintiffâ) is a state prisoner
proceeding pro se in this civil rights action under 42 U.S.C.
Â§ 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.
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 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.
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.
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.
March 10, 2015, Dr. Kokor re-prescribed SUMAtriptan.
Plaintiff was called to medical and told to take the
March 16, 2015, Dr. Kokor re-prescribed SUMAtriptan.
Plaintiff was called to medical to take the medication.
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.
March 28, 2015, Dr. Kokor reviewed and re-prescribed
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.
April 13, 2015, Dr. Kokor authored a Notification of
Diagnostic Test Results, noting that the results were
essentially within normal limits.
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.
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.
21 and 22, 2015, Dr. Kokor re-prescribed medication.
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.
October 28 and 29, 2015, Dr. Kokor reviewed and re-prescribed
December 20, 2015, Plaintiff's
gastro-intestinal/abdominal pain intensified. He went to
medical, but was told to return on Monday by Doe 1.
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.
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.
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.
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.
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
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
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.
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
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.
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.
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 ...