United States District Court, E.D. California
O.Z. MARTIN, Plaintiff,
ROBERT FOX, et al., Defendants.
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
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. Â§ 636(b)(1) and Local Rule 302.
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.
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).
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. §
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1989), superseded by statute as stated in Lopez v.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.
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).
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.
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.
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.
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.
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.
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.
alleges that defendants Haile, Saukhla and Petras violated
his Eighth Amendment rights by delaying his HCV treatment.
Plaintiff has stated a potentially ...