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Ochoa v. Von Lintig

United States District Court, S.D. California

August 27, 2019

BARRY ERNEST OCHOA, CDCR #AN-2773, Plaintiff,
v.
FEDERICKA VON LINTIG; L. CARMICHAEL; R. MADDEN; RALPH M. DIAZ; JOHN DOE #1; JOHN DOE #2 Defendants.

          ORDER DISMISSING DEFENDANTS AND DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SECOND AMENDED COMPLAINT ON DEFENDANT VON LINTIG

          HON. MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE

         Plaintiff Barry Ernest Ochoa, a prisoner incarcerated at Correctional Training Facility located in Soledad, California, and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's initial Complaint was stricken by the Court for failing to comply with the Court's General Order 653A. See Doc. No. 4. However, the Court later permitted Plaintiff to file a First Amended Complaint (“FAC”). See Doc. No. 9. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), a Motion for Leave to File Excess Pages, and a Motion to Appoint Counsel. See Doc. Nos. 10, 11, 12.

         On June 25, 2019, the Court granted Plaintiff's Motion to Proceed IFP, denied his Motion to Appoint Counsel, granted his Motion for Leave to File Excess Pages, and sua sponte dismissed his FAC for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). On August 8, 2019, Plaintiff filed his Second Amended Complaint (“SAC”). See Doc. No. 14.

         I. Screening of Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

         A. Standard of Review

         As the Court previously informed Plaintiff, because he is a prisoner and is proceeding IFP, his SAC requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

         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.” Id. “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         B. Plaintiff's Allegations [1]

         On July 3, 2013 Plaintiff “arrived” at CEN and “requested [Hepatitis] C treatment.” SAC at 3. Medical staff ordered “bloodwork” on July 26, 2013 which “showed Plaintiff had [Hepatitis] C genotype 1(a).” Id. Plaintiff was “referred to the [Hepatitis] C clinic where additional bloodwork was ordered.” Id. Plaintiff claims this additional bloodwork “showed an increase in the severity of [Plaintiff's] medical condition.” Id.

         On November 12, 2013, Plaintiff made an “additional request for treatment” when he was seen at the “Hep C clinic.” Id. Plaintiff alleges he “complained of extreme pain and recurring symptoms.” Id. However, he claims Defendant Von Lintig[2] “refused [Plaintiff's] request for treatment” because according to the CDCR's Hepatitis C “management policy and procedure, ” Plaintiff needed to be “at least stage 2” before he became “eligible for the treatment.” Id. Plaintiff alleges Von Lintig “refused to complete a (TAR) treatment authorization request” Id. “At this point the [Plaintiff's Hepatitis C] had not yet caused any permanent liver (or other) damage.” Id. Von Lintig did order a “biopsy of [Plaintiff's] liver.” Id. at 13.

         On January 10, 2014, a “report was issued indicating that the results of the biopsy” indicated that Plaintiff's Hepatitis C “had progressed to stage 2.” Id. Plaintiff was “notified that a 14 day follow up would be generated” but “it never happened.” Id. Plaintiff submitted a “Health Care Services Request” form “seeking treatment” for his stage 2 Hepatitis C. Id.

         “Weeks later, ” Plaintiff had an appointment with Von Lintig and claims he “stated [his] concern about developing cirrhosis” and “requested treatment.” Id. However, Plaintiff alleges Von Linting “denied [his] request and stated CDCR's policy had changed and [he] would not now be eligible for treatment” until he reached “stage 3.” Id.

         Plaintiff was examined by Dr. Rogelio Ortega[3] on February 1, 2016 and informed Plaintiff that he was “concerned about [him] developing cirrhosis.” Id. One day later, Dr. Kyle Seely[4] examined Plaintiff and “noted that [he] was eligible for Hepatitis C treatment and he completed a TAR.” Id. On March 8, 2016, Dr. Seeley informed Plaintiff that his treatment “was deferred by the HCV Oversight Committee due to [Plaintiff] possibly being released early on parole.” Id. However, Dr. Seeley, after speaking with Plaintiff, “emailed ...


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