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Calderon v. Gamboa

United States District Court, E.D. California

October 30, 2019

JOSE GUADALUPE CALDERON, Plaintiff,
v.
LAWRENCE GAMBOA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ALL CLAIMS AND DEFENDANTS (ECF NO. 18) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE (21) DAYS ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE

         Jose Calderon (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on November 20, 2018. (ECF No. 1). The Court screened the complaint, finding no cognizable claims and giving Plaintiff leave to amend, on October 7, 2019. (ECF No. 17). Plaintiff filed a First Amended Complaint (“FAC”) on October 18, 2019. (ECF No. 18). Plaintiff generally alleges that he was misdiagnosed as having gout for years, while the correct diagnosis was myopathy.

         The Court has reviewed the FAC and recommends dismissing the FAC without leave to amend. Plaintiff may file objections to these findings and recommendations within twenty-one days of the date of service of this order, which will be reviewed by the district judge.

         I. 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). As Plaintiff is proceeding in forma pauperis (ECF No. 6), the Court may also screen the complaint under 28 U.S.C. § 1915. “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)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. 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). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         II. SUMMARY OF PLAINTIFF'S FIRST AMENDED COMPLAINT

         Plaintiff claims that while incarcerated at Salinas Valley State Prison (“SVSP”), he was medically treated for gout over a range of nine years. However, there was no evidence of Plaintiff having gout and newer examinations showed this was a misdiagnosis by Defendant Magdy on August 13, 2009. On May 11, 2018, Rheumatology confirmed the misdiagnosis and determined that Plaintiff is actually suffering from myopathy.

         Plaintiff spent about five years in SVSP. He was seen there by Defendant Dr. Danials Magdy and Defendant Dr. Lawrence Gamboa. Plaintiff always told them that he was losing strength and mobility. About a year later he was told that he had “gout.” Plaintiff believed them. Later, when Plaintiff educated himself about gout, he learned that his symptoms were not related to gout. His feet, legs, and right big toe never got inflamed. Plaintiff told Defendant Dr. Magdy and Defendant Dr. Gamboa that perhaps his disease or condition was something else. Plaintiff was also misdiagnosed with left ankle pain.

         Plaintiff started taking Allopurinol for gout. His health got worse. Plaintiff told his doctors he could not run or jump. On January 31, 2009, and May 9, 2010, Plaintiff kept complaining about pain.

         On March 8, 2010, Plaintiff “was misdiagnosed with ‘chronic arthitis [sic]' and that ‘gout' was normal.” But his doctors kept telling him that he had gout.

         On March 22, 2011, Plaintiff told Defendant Dr. Gamboa that he still had pain.

         On June 9, 2011, Defendant Dr. Gamboa found out that Plaintiff had many bacteria, yet he never told Plaintiff about the bacteria.

         On January 18, 2012, Plaintiff submitted a CDC 7362 form, stating that he had shortness of breath and that on two occasions he almost passed out.

         On August 28, 2012, Defendant Dr. Gamboa knew that Plaintiff's uric acid was in range, but kept telling Plaintiff that he had gout.

         On September 9, 2012, Plaintiff submitted another CDC 7362 form, stating that all he wanted was to sleep, and that he was feeling very feeble. His doctors kept telling him that this was due to the gout.

         On October 8, 2012, on a request form 22, Plaintiff told Defendant Dr. Gamboa that he did not care about Plaintiff. Plaintiff told Defendant Dr. Gamboa that if he gets sicker, and he finds out the Dr. Gamboa was aware but did not do anything, he would sue Dr. Gamboa.

         On March 3, 2013, Plaintiff requested the assistance of a translator.

         In a note dated March 14, 2013, Plaintiff stated that he did ...


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