Scott v. Beregovskay
| Decision Date | 19 September 2018 |
| Docket Number | 1:17-cv-01146-LJO-GSA-PC |
| Parties | TIANTE DION SCOTT, Plaintiff, v. BEREGOVSKAY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND
(ECF No. 20.)
Tiante Dion Scott ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On June 19, 2017, Plaintiff filed the Complaint commencing this action at the United States District Court for the Northern District of California. (ECF No. 1.) On August 24, 2017, the case was transferred to this court. (ECF No. 6.)
The court screened the Complaint and issued an order on September 6, 2017, dismissing the Complaint for violation of Rule 8(a), with leave to file an amended complaint not exceeding 25 pages. (ECF No. 11.) On December 18, 2017, Plaintiff filed a First Amended Complaint that was 55 pages in length. (ECF No. 17.) Plaintiff also filed a motion for permission to exceed the 25-page limit for the First Amended Complaint. (ECF No. 18.)
The court screened the First Amended Complaint and dismissed it on January 2, 2018, for violation of Rule 220 and failure to comply with the court's order limiting the complaint to 25 pages. (ECF No. 19.) Plaintiff was granted leave to file a Second Amended Complaint not exceeding 35 pages. (Id.) On January 23, 2018, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (ECF No. 20.)
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). "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)). 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). To state a viable claim, Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
Plaintiff is presently incarcerated at Pelican Bay State Prison in Crescent City, California. The events at issue in the Second Amended Complaint allegedly occurred at North Kern State Prison in Delano, California. Plaintiff names as defendants Olga Beregovskaya (MD), A. Shittu (MD), Ndukwe N. Odeluga (MD), J. Lewis (Deputy Director, CDCR), R. Robles (Surgeon), T. Guhl (RN), L. Krzysiak (MD), Banayan (MD), David Gines (MD), Karen Jose (RN), Gabriel (RN), C. Agbasi (LVN), A. Armendarez (RN), Oyeniyi (LVN), M. Cavanaugh (SRN), and S. Garza (SRN) (collectively, "Defendants"). A summary of Plaintiff's allegations follows.
On February 27, 2016, Plaintiff was attacked by inmate Beloney, and one of Beloney's associates stabbed Plaintiff in the neck. Correctional officers (C/Os) ordered the inmates to get down on the ground and then ordered to return to their assigned housing. Apparently, the C/Os did not notice the stab wound, which did not start to bleed until Plaintiff arrived at his cell.
On February 28, 2016, Plaintiff's neck was swollen and he could not lift his right arm. Plaintiff was again attacked by inmate Beloney. The C/Os stopped the fight and the two inmates were placed in holding cages to be interviewed. Defendant Karen Jose (LVN) interviewed Plaintiff in the cage while he was also in the presence of inmate Beloney. Defendant Jose examined Plaintiff but did not see the wound on Plaintiff's neck and failed to document that Plaintiff told her he could not raise his right arm. Plaintiff told defendant Jose that he needed a doctor for his neck wound, and she (Jose) asked Plaintiff, in front of inmate Beloney, why he needed the doctor and how he was wounded. Plaintiff could not blame inmate Beloney's associate for his stab wound without placing himself at risk of harm on the prison yard because he would be labeled a snitch, so Plaintiff told defendant Jose that he was injured on the basketball court. Defendant Jose told Plaintiff that his basketball injury was not relevant to her interview and he would have to submit a 7362 medical request form to be seen for that injury. Plaintiff alleges that defendant Jose did not allow Plaintiff to keep his sensitive medical information private, nor did she (Jose) record on the 7219 medical incident form that Plaintiff complained of a neck and arm injury. After the interview, both inmates were returned to their cells.
/// On February 29, 2016, Plaintiff again fought with inmate Beloney. The fight was stopped and the two inmates were placed in holding cages. Defendant C. Agbasi (LVN) interviewed the inmates. Again, because Plaintiff was in the presence of inmate Beloney, he could not privately inform the nurse about his neck wound. When asked why he needed to see the doctor, Plaintiff told defendant Agbasi that while playing basketball, someone with long fingernails punctured him. By now the wound was swollen and white pus bubbled from the puncture site. Plaintiff wanted to privately see a doctor for antibiotics, so he told defendant Agbasi, "I think the puncture might be infected by [a] staph infection." ECF No. 20 at 11:25-26. Defendant Agbasi took a closer look at Plaintiff's neck and called over defendant Armendarez (RN) to also look. Defendant Armendarez left and returned telling Plaintiff she (Armendarez) had spoken with defendant Dr. Gines, and told him (Gines) she thought Plaintiff's wound was an ingrown hair and needed antibiotics. Plaintiff demanded to see the doctor and defendant Agbasi told him to fill out a 7362 medical request form. Defendant Agbasi completed Plaintiff's examination. Plaintiff told defendant Agbasi that he could not raise his arm and demanded that Agbasi record on the 7219 form that his arm was injured, which Agbasi did. Plaintiff was returned to his cell. Dr. Gines prescribed an antibiotic for an ingrown hair without seeing Plaintiff, which Plaintiff alleges was negligent. Plaintiff was not allowed privacy to discuss his sensitive medical needs.
On March 1, 2016, Plaintiff was attacked by two other inmates, lacerated, and taken to the emergency room. Medical personnel focused on the lacerations and did not treat Plaintiff's neck, although Plaintiff told staff that he had been stabbed in his neck. This mistake was made by defendant LVN Oyeniyi. When interviewed, Plaintiff told defendant S. Garza (SRN) that he was stabbed, which Garza recorded on a medical form. Plaintiff contends that a systematic deficiency exists, because several nurses have failed to record what inmates told them. After being interviewed by defendants Garza and Oyeniyi, defendant Dr. Olga Beregovskaya operated on Plaintiff and applied seven sutures to his face, but did not acknowledge Plaintiff's arm injury. Plaintiff informed defendant Beregovskaya that he had also been stabbed, thought the stab wound was infected, and could not raise his arm. Dr. Beregovskaya asked Plaintiff to raise his arm, which Plaintiff attempted to do, and the doctor became frustrated and said, "You are not raisingyour arm because you don't want to." ECF No. 20 at 16:7. Plaintiff exploded in anger and afterward Dr. Beregovskaya looked at his neck, stating, "It does not look like a stab wound." ECF No 20 at 16:16-17. By this time, the wound was swollen and whitish looking, and Plaintiff said, "It's changing colors, it's infected." ECF No. 20 at 16:17. The doctor looked on the computer and noted that Plaintiff was treated for an ingrown hair, and Plaintiff said that was inaccurate and that he had been stabbed. Dr. Beregovskaya told Plaintiff his antibiotics would be changed and gave Plaintiff x-rays, which did not show metal in his neck. When Plaintiff asked if the x-ray could see glass or plastic, she (Beregovskaya) said, "No" and told Plaintiff she was not going to order an MRI because of the results of the x-rays. Plaintiff asked Dr. Beregovskaya if she would clean out his neck wound, and she responded that she was not going to reopen the wound.
Dr. Beregovskaya made a report that stated she did not think Plaintiff was stabbed in the neck, so the C/Os placed Plaintiff in administrative segregation instead of the infirmary. Plaintiff was placed on suicide watch, where he was only allowed one blanket and sheet, and no pillow. Plaintiff was extremely cold and his neck hurt. Dr. Beregovskaya only ordered Plaintiff 10 days of Ibuprofen 600mg, which was not strong enough. The first night Plaintiff had no antibiotics or pain medication. Plaintiff contends that Dr. Beregovskaya...
To continue reading
Request your trial