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Martin v. Fox

United States District Court, E.D. California

December 2, 2019

O.Z. MARTIN, Plaintiff,
v.
ROBERT FOX, et al., Defendants.

          ORDER

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

         Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

         Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         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).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 1227.

         Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

         Named as defendants are California Medical Facility (“CMF”) Warden Robert Fox, CMF Chief Medical Officer (“CMO”) Bick, Dr. Petras, Dr. Haile, Dr. Saukhla, Dr. Ditomas, David Horch and J. Lewis.

         Plaintiff alleges that he has been diagnosed with Hepatitis C since 1991. Plaintiff alleges that California Department of Health Care Services HCV Treatment Policy provides that individuals suffering from Stage 2 or greater hepatic fibrosis and debilitating fatigue are candidates for HCV treatment. Plaintiff alleges that based on this policy, he has been a candidate for HCV treatment since March 13, 2016, when he suffered from body itching, debilitating fatigue, abdominal pain in the liver area and a worsened hepatitis fibrosis score. Plaintiff alleges that in September 2016, his condition deteriorated, and he also suffered from nausea, vomiting, diarrhea and joint pain.

         Plaintiff alleges that from November 2015 to July 2017, he complained to defendants Haile, Saukhla and Petras about his Hepatitis C symptoms. Plaintiff alleges that these defendants falsified plaintiff's medical records to state that plaintiff suffered from no symptoms in order to deny his request for treatment. Plaintiff alleges that these defendants informed him that the cost of the treatment was too expensive. Plaintiff alleges that these defendants knew of, or should have known, of the Health Care Services HCV Treatment Policy.

         Plaintiff alleges that on August 8, 2017, defendant Saukhla finally found that plaintiff was eligible for HCV treatment. On September 15, 2017, plaintiff's treatment commenced. At that time, defendant Petras indicated that plaintiff had body wide itching, nausea and vomiting. Defendant Petras told plaintiff that because of his advanced HCV liver disease, it was unlikely that the HCV treatment would have any effect on his HCV symptoms.

         Plaintiff alleges that on October 19, 2017, defendant Saukhla examined plaintiff. Following this examination, defendant Saukhla falsely recorded that plaintiff did not complain of ongoing nausea, vomiting, loose bowels, body itching, abdominal pain, drowsiness, joint pain, etc. On December 26, 2017, defendant Haile examined plaintiff. Plaintiff alleges that following this examination, defendant Haile falsely wrote that plaintiff did not complain of ongoing symptoms.

         On March 22, 2018, defendant Haile informed plaintiff that his HCV virus was non-detectable. Plaintiff told defendant Haile that he still suffered from ongoing nausea, vomiting, loose bowels, body wide itching, abdominal pain, fatigue, etc. Defendant Haile then falsely reported that plaintiff did not complain of these symptoms.

         Plaintiff alleges that defendants Haile, Saukhla and Petras violated his Eighth Amendment rights by delaying his HCV treatment. Plaintiff has stated a potentially ...


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