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Murray v. Pachecho

United States District Court, E.D. California

July 22, 2019

MAURICE B. MURRAY, Plaintiff,
v.
PACHECHO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF NO. 9.)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Maurice B. Murray (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 20, 2017, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On August 3, 2018, the court screened the Complaint and issued an order dismissing the Complaint for failure to state a claim, with leave to amend. (ECF No. 8.)

         On August 31, 2018, Plaintiff filed the First Amended Complaint, which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 9.)

         II. SCREENING REQUIREMENT

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint is required to 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 state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. SUMMARY OF FIRST AMENDED COMPLAINT

         Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility and State Prison (SATF) in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR), where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Nurse Pacheco, Nurse Brown, Dr. Chang, Dr. Scharffenberg, Dr. Hrabko, C. Cryer (Chief Executive Officer), and Medical Health Care Services (at SATF) (collectively, “Defendants”). Plaintiff alleges as follows.

         Nurse Pacheco refused to have Plaintiff sent to the medical facility at SATF to see the attending doctor about sores and lesions that were spread over Plaintiff's body and bleeding. Nurse Pacheco made a visual determination of what the problem “was not, ” but she could not determine what the condition was or what was causing it. (ECF No. 9 at 3:7.) Plaintiff contends that Nurse Pacheco should have had him immediately sent to the medical facility because she saw the bleeding and the number of lesions on Plaintiff's body. Plaintiff contends that Nurse Pacheco's refusal to send him to the doctor on duty set off a chain of denials in which each of the named defendants played a very significant role.

         Nurse Brown saw Plaintiff for the same condition that Nurse Pacheco had seen. Nurse Brown saw the condition, which was progressing without treatment. For the second time Plaintiff requested to see a dermatologist. Nurse Brown did not know what the condition was or how to treat it. Plaintiff contends that Nurse Brown should have sent him to the medical facility on the prison grounds to be seen by a doctor as the condition was worse than when Plaintiff saw Nurse Pacheco. Nurse Brown just gave Plaintiff some Hydrocortisone and told Plaintiff to submit another medical slip if the problem continued. Plaintiff contends that this inaction by Nurse Brown contributed to and continued the chain of denial of medical care for what was obviously a skin condition that needed immediate medical attention. Plaintiff contends that anyone outside the medical field would know that Hydrocortisone should not be used on open wounds or cuts.

         Dr. Chang made no effort to have Plaintiff seen by a dermatologist. Dr. Chang had sufficient information and had seen Plaintiff's condition when Plaintiff was sent to Dr. Chang for a biopsy at the medical facility at SATF. Afterward, when Plaintiff saw medical staff on the prison yard he was told that a referral to a dermatologist was not going to be made and that Dr. Chang's report on the biopsy was lost. The next time Plaintiff went for medical treatment, medical for the same condition that was now all over his arms, shoulders, and legs, he was told that the biopsy results showed “fungus.” (ECF No. 9 at 5:14-15.) The next time Plaintiff went, he was told that the biopsy results showed Lichen Simplex Chronicus. And the next time he was told the condition was Seborrheic keratosis. Dr. Chang failed to place a medical order for Plaintiff to see a dermatologist or skin specialist even with the knowledge of multiple diagnosis of Plaintiff's biopsy. Dr. Chang's inaction continued the chain of denial of medical care. By now there was a pattern of denial by the named Defendants.

         Dr. Scharffenberg saw Plaintiff for the skin condition that Plaintiff had now complained about for several months. Dr. Scharffenberg did not know what the condition was or how to treat it. The fact that Dr. Scharffenberg saw Plaintiff's medical condition should have prompted him to call for transport to the medical facility for an examination by the doctor on duty. Later, Plaintiff made an emergency visit to medical for his scrotum sack, which was swollen all the way up to the head of his penis, literally the size of a grapefruit. Dr. Scharffenberg made absolutely no effort to refer Plaintiff to the institution hospital for examination or treatment, and he did not have an explanation about why Plaintiff had the condition. He simply gave Plaintiff a couple of days supply of Benadryl and sent Plaintiff on his way. Plaintiff told Dr. Scharffenberg that he believed the problem with his scrotum was a result of his ongoing skin condition, but the doctor dismissed that notion.

         Dr. Hrabko also refused to order or recommend that Plaintiff be seen by a dermatologist or skin specialist. He saw the skin lesions more than once and the effect they were having on Plaintiff's skin. He knew of the multiple different results of the biopsy and yet failed to order a new biopsy or have Plaintiff seen by a specialist. He was aware of Plaintiff's requests and medical forms sent to the Medical Health Care Service, as well as two medical 602s filed to the California Correctional Health Care Services requesting to be seen by a dermatologist or skin ...


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