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Dancy v. Scribner

August 10, 2008

SAMUEL DANCY, JR., PLAINTIFF,
v.
A. K. SCRIBNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING (1) DENIAL OF MOTION FOR APPOINTMENT OF COUNSEL AND SPECIAL MASTER, AND (2) DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS

(Doc. 17)

OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations Following Screening of Amended Complaint Plaintiff Samuel Dancy, Jr. ("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 filed this action on May 15, 2007. The Court dismissed Plaintiff's complaint, with leave to amend, for failure to state any claims upon which relief may be granted on September 10, 2007, and after obtaining two extensions of time, Plaintiff filed an amended complaint on December 3, 2007.

I. 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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Denial of Medical Care in Violation of the Eighth Amendment

A. Plaintiff's Allegations

The events at issue in this action allegedly occurred at California State Prison-Corcoran, where Plaintiff is presently housed. Plaintiff alleges claims for violation of his rights under the Eighth Amendment of the United States Constitution arising out of the failure to provide adequate medical treatment for his fractured finger, including providing pain relief.

Plaintiff's injury and the medical care he received is summarized as follows. Plaintiff injured his right finger on February 24, 2005. The injury required immediate medical care and Plaintiff was taken to the Acute Care Hospital, where Defendant Thompson ordered x-rays*fn1 and pain medication, attempted to reset and splint the finger, and ordered a follow-up evaluation in four weeks. After filing an inmate appeal, Plaintiff was again seen by Defendant Thompson on May 17, 2005, at which time another x-ray was ordered but nothing else was done. Plaintiff was evaluated on August 31, 2005, by Defendant Smith, a specialist, who recommended that Plaintiff receive surgery. Plaintiff was evaluated by Defendant Reynolds on November 14, 2005, who determined that Plaintiff's injury had worsened and arthritic inflammation was present. Surgery was again recommended. On December 8, 2005, Plaintiff was seen by Defendant Gage, who ordered Tylenol with Codeine and resubmitted the surgery recommendation. Surgery was set for March 8, 2006, but was ultimately postponed until April 14, 2006. On March 10, 2006, Plaintiff was examined by Defendant Hasasdri and his pain medication was discontinued. On June 28, 2006, Defendant Smith removed Plaintiff's cast and pins, and informed Plaintiff that his finger lacked use. Throughout this time period, Plaintiff pursued inmate appeals in an attempt to get his medical needs met.

B. Defendants Thompson, Smith, Posner, Reynolds, Gage, and Hasadsri

During the events at issue in this action, Defendants Thompson, Smith, Posner, Reynolds, Gage, and Hasadsri were physicians at the prison. Some of the defendants were Plaintiff's treating physicians and others were involved as a result of their consideration of Plaintiff's inmate appeals at the institutional level.

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). 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 significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. 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 indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Where a prisoner is alleging a delay in ...


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