United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION (ECF No. 19)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Donny Steward (âPlaintiffâ) is a state prisoner proceeding
pro se and in forma pauperis in this civil rights action
under 42 U.S.C. Â§ 1983. On April 24, 2019, the Court screened
Plaintiff's complaint and granted him leave to amend.
(ECF No. 18.) Plaintiff's first amended complaint, filed
on May 28, 2019, is currently before the Court for screening.
(ECF No. 19.)
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.
Summary of Plaintiff's First Amended Complaint
is currently housed at Kern Valley State Prison in Delano,
California. The events in the complaint are alleged to have
occurred while Plaintiff was housed at the California
Substance Abuse Treatment Facility (“CSATF”) in
Corcoran, California. Plaintiff names the following
defendants: (1) Dr. Ngozi Onyinya Igbinosa; (2) Correctional
Officer Cerda: (3) Correctional Officer Vanderlaan; (4)
Licensed Vocational Nurse Faria; (5) Correctional Officer
Hill; (6) Appeals Coordination Nurse M. Carrasquillo; (7) G.
Ugwueze, Chief Medical Executive; (8) J. Lewis, Director of
Policy and Risk Management Services; (9) Clarence Cryer, Jr.,
Chief Medical Physician; (10) Licensed Vocational Nurse
Nelson; (11) Sergeant Williams; and (12) Captain Brightwell.
asserts that all defendants are being sued in their
individual capacity and they were all directly or indirectly
involved in the event leading to Defendants Cerda and Hill
failing to call paramedics for treatment of Plaintiff's
serious medical condition. Plaintiff further alleges that it
was a conscious choice for Defendant Vanderlaan to open
confidential mail and impeded Plaintiff's request for an
investigation of Defendants Cerda and Hill. Plaintiff
contends it was LVN Nelson's conscious decision to refuse
to assist with treatment of Plaintiff's neuropathy and
she was encouraged to give Plaintiff a 115 for going
“man down” on the yard. On November 7, 2014,
Sergeant Williams found Plaintiff guilty for getting on the
ground when the medical center continually denied his pleas
for assistance with his neuropathy. Plaintiff asserts that
the guilty finding was a conscious choice by Sergeant
Williams to deprive Plaintiff of the medical care needed for
his chronic diabetic neuropathy.
contends that he was subjected to an assault and battery on
October 25, 2014, because he submitted a complaint to the
California Medical Board on April 29, 2014, and to the Office
of Internal Affairs, and made a citizen's complaint
against Dr. Igbinosa and Nurse Faria based on their refusal
to provide treatment for his neuropathy. The investigations
also forced Dr. Igbinosa to prescribe Tylenol-3, which did
not scratch the surface of Plaintiff's neuropathy pain.
alleges that during an appointment on September 29, 2014, Dr.
Igbinosa had Plaintiff stand up and move his hand and arm in
various directions so that she could examine how much
movement Plaintiff had in his right arm, hand and shoulder.
When she was satisfied, Dr. Igbinosa then conducted her own
examination. Once she was satisfied that Plaintiff was not in
a position to use his arm, she scratched down his forearm
fast and hard with left finger while tightly holding
Plaintiff's wrist. She quickly grabbed his elbow, holding
Plaintiff in place. When Plaintiff yelled, she said she was
sorry. When asked why she did it, Dr. Igbinosa stated that
she did not believe that Plaintiff was in that much pain.
Plaintiff asked her to let him go. Dr. Igbinosa then wanted
to know that if she let him go whether Plaintiff would harm
her. Plaintiff said no. Dr. Igbinosa let him go and pushed
him away. Plaintiff then stood there in shock, but then
grabbed his I.D. and ran past two correctional officers
seated just outside Dr. Igbinosa's office. Plaintiff
claims that the investigations and staff complaint had caused
30, 2015, Plaintiff received a telephone interview from
Defendant Ugwueze, who had Plaintiff's staff complaint.
During the interview, Defendant Ugwueze wanted to know what
occurred on September 29, 2014, in Dr. Igbinosa's office,
including if there were any witnesses and, if not, then
Plaintiff had no witness to substantiate the assault.
Plaintiff indicated that he was willing to take a lie
detector test to prove the complaint. Defendant Ugbueze said
that even if Plaintiff passed the lie detector it could not
be used in a court of law. Plaintiff responded that they
would let a judge determine that point. The interview then
ended. Plaintiff asserts that Dr. Ugwueze's signature is
found on the staff complaint that was rejected and eventually
January 28, 2015, Plaintiff alleges that he was interviewed
by Defendant Carasquilla. She wanted Plaintiff to know how
difficult it was for Dr. Igbinosa to care for over 2, 000
inmates and that Plaintiff should withdraw the appeal because
of the stress she was under having to deal with so many
personalities. Plaintiff explained to Defendant Carasquilla
that he understood the pressure, but Dr. Igbinosa's
professional ethics and responsibility to her duties should
never give any reason for her to assault anyone. Plaintiff
refused to withdraw the appeal.
18, 2015, Director of Risk and Management Policy J. Lewis,
after reviewing Plaintiff's staff complaint against Dr.
Igbinosa, ordered an inquiry into the treatment of
Plaintiff's complications with neuropathy. Although the
results were ordered to be known to Plaintiff, Defendant
Ugwueze and G. Myenke told Plaintiff that no findings of the
inquiry would be given to him. They also found that the
alleged assault and battery did not meet the definition of a
staff complaint and was changed to a health care treatment
issue. The partial grant of the appeal was only for an
investigation and nothing to do with how the neuropathy
complications should have been treated.
January 30, 2015, Plaintiff sent a CDCR 22 inquiring as to
why his staff complaint for assault was changed. Defendant
Cryer had decided that Plaintiff's staff complaint did
not meet the criteria for processing as a staff complaint.
Plaintiff was dissatisfied and asked that Defendant Cryer
show him how mistreatment of his illness and assault and
battery were not a staff complaint. Plaintiff did not receive
18, 2015, Plaintiff contacted Defendant Lewis, who modified
the order accepting the appeal as a staff complaint.
October 2, 2014, and during that month, Plaintiff tried to
talk with Defendant Brightwell about the medical issue,
mistreatment and suffering with neurological complications.
Plaintiff also saw her once or twice. She finally told
Plaintiff not to talk to her directly and to use the chain of
contends that he remembers how he never received any help for
9 months for swelling from diabetic complications and he
endured neurological pain for three months, which resulted in
crying all night and cold sweats. When he would visit the
medical center for treatment, he would be taunted, badgered
and turned away day after day. Plaintiff asserts that he lost
muscle mass and major feeling in his feet, legs and hands.
forwards complaints for violation of the Eighth and
Fourteenth Amendments to the United States Constitution along