Van Gessel v. Moore, 1:18-cv-01478-DAD-GSA-PC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtGary S. Austin UNITED STATES MAGISTRATE JUDGE
PartiesCHRISTOPHER ALLEN VAN GESSEL, Plaintiff, v. THOMAS MOORE, et al., Defendants.
Docket Number1:18-cv-01478-DAD-GSA-PC
Decision Date24 February 2020

CHRISTOPHER ALLEN VAN GESSEL, Plaintiff,
v.
THOMAS MOORE, et al., Defendants.

1:18-cv-01478-DAD-GSA-PC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 24, 2020


FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED AGAINST DEFENDANTS MOORE, ALTUIRE, AND BALLESIL ON PLAINTIFF'S MEDICAL CLAIMS UNDER THE EIGHTH AMENDMENT AND MALPRACTICE CLAIMS UNDER THE FTCA, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED, WITH PREJUDICE, FOR PLAINTIFF'S FAILURE TO STATE A CLAIM

OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

I. BACKGROUND

Christopher Allen Van Gessel ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). On October 26, 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On September 24, 2019, the court issued an order for Plaintiff to either file an amended complaint or notify the court he was willing to proceed only with the claims found cognizable by the court against defendants Dr. Thomas Moore, Physician's Assistant Altuire, and Physician's Assistant Ballesil

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for inadequate medical care under the Eighth Amendment. (ECF No. 8.) On October 7, 2019, Plaintiff filed the First Amended Complaint, which is now before the court for screening. 28 U.S.C. § 1915A. (ECF No. 10.)

II. SCREENING REQUIREMENT

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.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is presently incarcerated at the United States Penitentiary-Atwater in Atwater, California, in the custody of the Federal Bureau of Prisons, where the events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Dr. Thomas Moore, the

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United States, Physician's Assistant Ballesil, Food Services Director R.W. Madan, Jr., Safety Officer Marquez, and Physician's Assistant Altuire (collectively, "Defendants").

A summary of Plaintiff's allegations follows:

On March 12, 2018, Plaintiff was cleaning his work area known as the Satellite Feeding Room in Food Service with hot water from the steam kettle. Plaintiff accidently spilled the hot water onto his left work boot. The hot water soaked into his boot and his sock badly burning his foot.

It took Plaintiff time to take off his boot because it was tied on very tightly. Plaintiff screamed for help, but no one came. He finally got his boot and sock off, but it was too late. He had suffered second degree burns on both sides of his foot. The water temperature was at least 240 degrees Fahrenheit, and his boots were not waterproof.

Plaintiff's co-worker, inmate Hawkins, heard Plaintiff and went for help. Hawkins and another inmate, Maurice Franklin, carried Plaintiff to Medical, escorted by Plaintiff's supervisor, C/O Duncan [not a defendant]. Plaintiff arrived at Medical in excruciating pain. C/O Duncan asked defendant Ballesil if he needed him to stay, and Ballesil told him no. C/O Duncan left and defendants Physician's Assistants Ballesil and Altuire asked Plaintiff what happened. Plaintiff told them. Plaintiff's vital signs were not taken. Plaintiff was ice cold and shaking, yet his foot was burning and hurting him very badly. He was in severe shock due to his injury. Defendant Ballesil told him that next time he was burned he should run cold water on the burn to stop it from burning. Plaintiff asked defendant Ballesil for pain medication, but Ballesil said that only a doctor could give him medication. Plaintiff asked for some aspirin but was denied again. Plaintiff asked how long it would take for his foot to heal, and Defendant Altuire said it was different for each person, but Plaintiff should drink lots of water, sleep a lot, and buy vitamins from the commissary to ward off infection, and take aspirin for pain. Plaintiff's commissary day was two days later, on March 14, 2018. Defendant Altuire told Plaintiff he (Plaintiff) would not be working for a while. Defendant Ballesil applied burn cream to Plaintiff's foot and wrapped it in gauze. Plaintiff was given crutches and told to come back the next day to have his dressing changed. Plaintiff was never taken to a hospital emergency room to see a real doctor who

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specializes in burns, and he was never given any special protective clothing to cover his burn and protect it. Plaintiff left Medical on crutches and in severe pain, returned to his housing unit and called his mother to tell her what happened. It was about 3:50 p.m. on March 12, 2018.

The next morning, on March 13, 2018, Plaintiff went to Medical and had his bandage changed by defendants Ballesil and Altuire. Defendant Ballesil called three other medical personnel into the room asking if they wanted to see a burn. All three were females and only one, Ms. Ybarra [not a defendant] spoke to Plaintiff. She asked him for his name and told him she would send a medical encounter report to the Facility Safety Officer, defendant C/O Marquez. She also told Plaintiff to tell his supervisor, C/O Duncan, to file an injury report. Plaintiff asked defendant Ballesil for pain medication but was denied. Plaintiff was still in excruciating pain. He left Medical with a clean bandage but missed seeing the doctor. Defendant Ballesil told Plaintiff to "put a cop-out in" if he wanted to see him for sick call. FAC at 10.

On March 14, 2018, Plaintiff went to Medical to have his bandage changed again, but the woman at the pill window, Physician's Assistant Putnam [not a defendant], told him that Medical was closed and no one was there. Plaintiff told her he needed his bandage changed and she said she would call Plaintiff's housing unit when they were ready for him to come back. Plaintiff came back at lunch and spoke to Physician's Assistant Silva [not a defendant] about his problem. She said she would look into it. Luckily for Plaintiff, Ms. Ybarra saw him through the window, let him in, and changed his dressing. She told Plaintiff his injury looked normal and did not smell bad. Plaintiff asked whether he needed a skin graft and Ms. Ybarra told Plaintiff that his burn was only three layers deep and would heal over time.

On March 15, 2018, Plaintiff went to Medical and had his bandage changed by Ms. Ybarra while Defendant Altuire watched. Defendant Dr. Moore, the facility doctor, came to get his keys from defendant Ybarra, saw Plaintiff's foot, and asked him what happened. Plaintiff told him and asked for pain medication. Dr. Moore said Plaintiff's foot looked good and told Plaintiff he could buy medication at the commissary. Plaintiff was finished and left.

On March 16, 2018, Plaintiff went to Medical and Ms. Ybarra changed his bandage.

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On March 17, 2018, Plaintiff went to Medical and defendant Ballesil changed his bandage. Plaintiff asked Ballesil for pain medication again but was denied. Plaintiff asked for photos to be taken of his foot for the records, but Ballesil said he had no camera. Ballesil laughed when Plaintiff told him to call the Lieutenant's office. Then Plaintiff went to the Lieutenant's office and spoke to Lt. Belaski [not a defendant] about taking pictures for his protection. Lt. Belaski told Lt. Martinez [not a defendant] to take pictures of Plaintiff's foot the next day.

On March 18, 2018, Plaintiff went to Medical and Spears [not a defendant] changed his bandage. No pictures were taken of Plaintiff's foot that day.

On March 19, 2018, Plaintiff went to Medical to have his bandage changed. Ms. Ybarra told him to come back later because she was busy. Plaintiff returned at 12:15 p.m. and C/O Moreno [not a defendant] took pictures of Plaintiff's foot before Spears [not a defendant] changed his bandage. Plaintiff left Medical to see defendant Safety Officer Marquez. C/O Alameda [not a defendant] led Plaintiff into his office. Defendant Marquez asked Plaintiff questions about his foot, like whether he could put a shoe or boot on his foot. Plaintiff said he could not even put a sock on his foot. Plaintiff asked how long it would be until he could go to work. Marquez told Plaintiff to submit a Medical Idle form telling how long he would be laid in,...

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