Vanderbusch v. Enenmoh et al

Filing 15

ORDER DISMISSING COMPLAINT AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT signed by Magistrate Judge Gary S. Austin on 3/3/2015. Amended Complaint due by 4/6/2015. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13 cv 01422 GSA PC

GARY WAYNE VANDERBUSCH,
Plaintiff,

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ORDER DISMISSING COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE
AN AMENDED COMPLAINT

vs.

DR. ENENMOH, et al.,
Defendants

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AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

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Screening Requirement
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction
pursuant to 28 U.S.C. § 636(c).1

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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Plaintiff filed a consent to proceed before a magistrate judge on September 26, 2013 (ECF No.

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii).
II.

Plaintiff’s Claims
Plaintiff, a inmate in the custody of the California Department of Corrections and

Rehabilitation (CDCR) at Lancaster State Prison, brings this civil rights action against defendant
correctional officials employed by the CDCR. Plaintiff names the following individual
defendants: Dr. Enenmoh, Chief Medical Officer at the Substance Abuse Treatment Facility
(SATF) at Corcoran; Dr. M. Rashidi, M.D.; a surgeon at Mercy Hospital in Bakersfield; Dr. J.
Chokatos, M.D.; Plaintiff‟s primary care physician while Plaintiff was housed at Pleasant Valley
State Prison; J. Fortune, a Physician‟s Assistant (PA) at Pleasant Valley. Plaintiff claims that
Defendants subjected him to inadequate medical care such that it violated the Eighth

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Amendment prohibition on cruel and unusual punishment. Plaintiff‟s claims stem from

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treatment for spinal stenosis. Plaintiff‟s complaint does not follow a direct timeline and Plaintiff

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frequently refers the Court to exhibits attached to the complaint. Plaintiff also sets forth his

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medical history in the CDCR dating from approximately 1984. The complaint appears to allege

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the following conduct.

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On 2006, while housed at Corcoran, Plaintiff was diagnosed with spondylosis of the

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upper spine. In September of 2007, Plaintiff had a neurological consultation at Mercy Hospital.

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Surgery was recommended. In January of 2008, Plaintiff was seen by Dr. Enenmoh, who

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referred Plaintiff for surgery. In May of 2008, Dr. Enenmoh altered the surgical request by

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“ defacing the document and writing over the word neurosurgery and replacing it with the word

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neurology and adding the words EMG.”

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Plaintiff was admitted to Mercy Hospital from June 13, 2009, to June 23, 2009. Dr.

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Rashidi noted foraminal stenosis. Dr. Rashidi specifically noted “I can‟t guarantee amount of

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pain relief after surgery.” Plaintiff alleges that in the post-operative record, Dr. Rashidi “defaces

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his notes and writes over C4-C5 and apparently changes it to C5-C6.” Plaintiff alleges that “the

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C4-C5 abnormalities are supported in my medical records, after surgery Defendant 2 [Dr.

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Rashidi] changes his view of the condition of the C4-C5 and for unknown reasons leaves the C5
nerve complex impinged.”
Plaintiff was returned to Corcoran with a recommendation for physical therapy. Plaintiff
was also prescribed pain medication. On August 11, 2009, Dr. Rashidi noted that Plaintiff
continued to suffer from chronic neck pain and headaches.

Plaintiff alleges that in December of

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2009, he stopped eating because of the pain. Plaintiff‟s primary care physician discussed “long

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term treatment of methadone for failed surgery and chronic pain.” Plaintiff alleges that Dr.

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Enenmoh “failed to initiate” physical therapy.

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In February of 2010, Plaintiff was transferred to Pleasant Valley. Plaintiff alleges that he
was diagnosed with clinical depression due to chronic cervical pain and placed into the Mental
Health program . Plaintiff received a lower bunk chrono, cane, orthopedic shoes, cervical collar,
cervical pillow and a chrono for no twisting, bending or lifting.
Plaintiff‟s allegations regarding Dr. Chokatos appear to stem from his charting of

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Plaintiff‟s medical condition. Plaintiff alleges that Dr. Chokatos‟ notes, “as a whole body of

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work, they are contradictive, confusing, inconsistent, unreliable and even incoherent and

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nonsensical.” Plaintiff alleges that his medical record reflects “a conscious attempt to deny me

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appropriate medical treatment.” Plaintiff challenges Dr. Chokatos‟ treatment for his

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hypertension and muscle spasms. Plaintiff alleges that his chart falsely states that Plaintiff is, in

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the view of medical professionals, manipulating the medical system to obtain drugs.

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Regarding Defendant Fortune, Plaintiff disagrees with Fortune‟s assessment that Plaintiff

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is receiving appropriate treatment for his chronic pain. Plaintiff alleges that Fortune “fails to use

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my medical file to make his diagnosis of me. Defendant fails to interpret my medical record or

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the anatomy of a spine correctly.”

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A.

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

Medical Care

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inmate must show „deliberate indifference to serious medical needs.‟” Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)).

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The two part test for deliberate indifference requires the plaintiff to show (1) “„a serious medical
need‟ by demonstrating that „failure to treat a prisoner‟s condition could result in further

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significant injury or the unnecessary and wanton infliction of pain,‟” and (2) “the defendant‟s

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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v.
Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate

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indifference is shown by “a purposeful act or failure to respond to a prisoner‟s pain or possible

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medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted
under color of state law and (2) the defendant deprived him of rights secured by the Constitution

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or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person

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deprives another of a constitutional right, where that person „does an affirmative act, participates

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in another‟s affirmative acts, or omits to perform an act which [that person] is legally required to

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do that causes the deprivation of which complaint is made.‟” Hydrick v. Hunter, 500 F.3d 978,

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988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he

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„requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which the

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actor knows or reasonably should know would cause others to inflict the constitutional injury.‟”

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Id. (quoting Johnson at 743-44).

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Plaintiff has not specifically charged each defendant with conduct indicating that they

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knew of and disregarded a serious risk to Plaintiff‟s health, resulting in injury to. Plaintiff may

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not hold defendants liable simply by detailing his medical history and challenging the medical

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decisions of Defendants. Plaintiff cannot prevail in a section 1983 action where only the quality

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of treatment is subject to dispute. Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989). Mere

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difference of opinion between a prisoner and prison medical staff as to appropriate medical care

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does not give rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000);

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Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Further, Plaintiff cannot refer to his exhibits in order to make the complaint complete.
Throughout the complaint, Plaintiff levels an allegation and refers to an exhibit attached to the
complaint. Plaintiff must allege facts, in the complaint, indicating that each defendant was aware
of a specific harm to Plaintiff, and acted with deliberate indifference to that harm. Plaintiff has
failed to do so here. The complaint should therefore be dismissed. Plaintiff will, however, be
granted leave to file an amended complaint.

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Plaintiff need not, however, set forth legal arguments in support of his claims. In order to
hold an individual defendant liable, Plaintiff must name the individual defendant, describe where
that defendant is employed and in what capacity, and explain how that defendant acted under
color of state law. Plaintiff should state clearly, in his own words, what happened. Plaintiff
must describe what each defendant, by name, did to violate the particular right described by

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Plaintiff.

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III.

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Conclusion and Order
The Court has screened Plaintiff‟s complaint and finds that it does not state any claims

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upon which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he

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may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George, 507 F.3d at 607 (no “buckshot” complaints).

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Plaintiff‟s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff‟s constitutional or other federal

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rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must

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be [sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 554 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565,

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567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an
original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d
at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord
Forsyth, 114 F.3d at 1474.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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claim;
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The Clerk‟s Office shall send to Plaintiff a complaint form;

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Within thirty (30) days from the date of service of this order, Plaintiff shall file

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Plaintiff‟s complaint is dismissed, with leave to amend, for failure to state a

an amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended

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complaint and any attempt to do so will result in an order striking the amended

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complaint; and

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5.

If Plaintiff fails to file an amended complaint, the Court will dismiss this action,
with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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March 3, 2015