Gray v. Odeluga

          ORDER REQUIRING PLAINTIFF TO FILE A RESPONSE (DOC. 13)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Plaintiff has filed a first amended complaint asserting constitutional claims against governmental employees. (Doc. 13.) Generally, the Court is required to screen complaints brought by inmates seeking relief against a governmental entity or an 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).

         I. Pleading Standard

         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)), and 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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

         Prisoners may bring § 1983 claims against individuals acting “under color of state law.” See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II. Plaintiff's Allegations

         At all times relevant to this action, Plaintiff was a state inmate housed at North Kern State Prison (“NKSP”) in Delano, California. Plaintiff brings this action against Dr. N. Odeluga, the NKSP Chief Medical Executive; Dr. A. Shittu, the NKSP Chief Physician and Surgeon; and Dr. Steven M. Yaplee, an ophthalmologist and glaucoma specialist in private practice. Plaintiff seeks several million dollars in damages and injunctive relief in the form of a transfer to California Correctional Medical Facility in Vacaville, California.

         Plaintiff's allegations may be fairly summarized as follows:

         A. Allegations Against Dr. Yaplee

         On February 8, 2016, Dr. Yaplee, a NKSP-contracted medical provider, performed a cataract surgery on Plaintiff's left eye even though Plaintiff had only agreed to have a procedure to reduce the pressure in that eye. Between June 2016 and October 2016, Plaintiff continually told Dr. Yaplee that his vision was worse. In November 2016, Dr. Yaplee referred Plaintiff to Dr. Tawansy, another NKSP-contracted medical provider.

         B. Allegations Against Dr. Odeluga

         Prior to February 2016, Dr. Odeluga was aware that Dr. Yaplee seriously injured inmates through surgery. Dr. Odeluga, however, did not share this information with Plaintiff and instead permitted Dr. Yaplee to perform the February 2016 surgery on Plaintiff's left eye.

         Dr. Odeluga referred Plaintiff to a Dr. Tawansy who performed two eye surgeries on Plaintiff between January 2017 and June 2018, one to correct the surgery performed by Dr. Yaplee and one to correct a eye surgery performed by a Dr. Lauritzen from June 2012.

         Later, Dr. Odeluga canceled NKSP's contract with Dr. Tawansy without informing Plaintiff and thereby excluding him from being involved in decisions regarding his own medical treatment. After canceling Dr. Tawansy's contract, Dr. Odeluga scheduled Plaintiff with Dr. Lauritzen, even after ...