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Anderson v. Felker

February 4, 2009

SAMUEL ANDERSON, PLAINTIFF,
v.
TOM FELKER, WARDEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. On 7/30/08, defendants Caldwell, David, Felker, Hayes, Hornsten, McDonald, McGuire, Nichols, Runnels and Wong filed a motion to dismiss. Defendant Hunsacker's subsequent request to join the motion to dismiss, filed on 8/27/08, is hereby granted. By Order, filed on 10/23/08, plaintiff's 10/01/08 request for an extension of time was construed liberally and deemed timely filed and plaintiff was granted a thirty-day extension of time to file an opposition. On 11/24/08, plaintiff filed his opposition to the motion; thereafter, defendants, on 12/04/08, filed their reply. Plaintiff's response to the reply, filed on 12/24/08, is not a filing contemplated within the applicable Local Rule, E.D. Local Rule 78-230(m), and is disregarded. Plaintiff has also filed, on 12/11/08, a putative motion for a court-ordered transfer. In addition, plaintiff has most recently filed, on 1/20/09, a document entitled simply "Immi[n]ent Danger."

Plaintiff's Allegations

This case was initiated on 6/4/07.*fn1 It now proceeds on plaintiff's amended complaint, filed on 11/15/07, as modified by the Order, filed on 5/21/08, dismissing eleven of the defendants named therein with prejudice.*fn2 The remaining eleven defendants are Warden T. Felker; Associate Warden M.D. McDonald; Assoc. Warden D.L. Runnels; Assoc. Warden R.K. Wong; Medical Technical Assistant (MTA) Hunsacker; Dr. Hornsten; Dr. A. David; Correctional Officer (C/O) Nichols; C/O Hayes; C/O Barron-McGuire; MTA Caldwell.

Plaintiff alleges that defendants Felker, McDonald, Runnels and Wong deprived plaintiff of outside yard exercise by their "illegal placement" of plaintiff on 1/09/07 in Close "A" custody in the Behavior Modification Unit (BMU) at High Desert State Prison (HDSP). AC, pp. 3-4, 14. Plaintiff contends that he filed a 602 inmate appeal on 4/21/07 for which he received a director's level decision, stating that Log no. HDSP 07-1465 (IAB no. 0616019), was partially granted. AC, p. 4. Plaintiff states that he filed, on 2/04/07, a 602 inmate appeal, Log No. HDSP 07-0728 (IAB no. 0615265), because he cannot take aspirin, ibuprofen, Motrin, Naproxen, Vioxx, Celebrex or any over-the-counter pain medications because they cause him stomach pain and doctors would not give him medication for his chronic lower back pain, arthritis and wrist pain; this appeal was denied. AC, p. 5. Plaintiff states that he also filed, on 2/04/07, a 602 appeal with regard to an M.T.A. Brown, whose name he later discovered to be Hunsacker,*fn3 a defendant herein, whom he claims withheld his diabetes and high blood pressure medication for 4 to 5 days. Id. This appeal "disappeared" or was "screened out." Id. On 2/21/07, plaintiff filed a 602 inmate appeal as to defendant Hornsten for stopping plaintiff's diabetes and high blood pressure medication. Id. Plaintiff's 602 appeal, filed on 3/19/07, concerned defendant David's effort to give plaintiff Gabapentin, a medication plaintiff claims causes him to be "doped up or mummified," and for which he explained to Dr. David*fn4 he had previously signed a refusal to take this medication when housed at Corcoran. AC, pp. 5, 23-25, 30. This appeal was "rejected." Id. In Log no. HDSP-D-07-01948, filed on 3/25/07,*fn5 also as to defendant David, plaintiff complained of David's trying to make plaintiff take Tylenol for pain even though she herself stated that plaintiff should not take due to damage to his liver, kidneys and intestines and for withholding the reordering of plaintiff's diabetes and high blood pressure medicine, withheld for nine days; plaintiff includes copies up through the second level denial of this appeal. AC, pp. 5, 26-32.

Plaintiff references a Reasonable Modification and Accommodations, CDC-1824, to which he evidently attached a 7/13/07 memorandum requesting handicap accessories for the shower in Building 5, D-yard, A-section apparently because he has to wash up in his cell due to his weakness and "loss of breath" and so that he does not face the risk of falling in the showers. AC, p. 5. He had previously, as of 10/03/05, been located in a yard with handicap shower accessories. Id. His appeal regarding this issue, Log. no. HDSP-D-07-02181, was "cancelled," ignoring doctor's recommendations, apparently referenced in CSP-Cor- 06-4679. Id.

On 6/12/07, plaintiff informed defendant Nichols that he had blood in his stool, who told plaintiff that the MTA had a medical emergency, but that he would leave a note for second watch officers about plaintiff's condition. AC, p. 6. On 6/13/07, when plaintiff asked defendant Hayes if defendant Nichols had left a note, defendant Hayes said, "No," and walked away as plaintiff tried to explain about the blood in his stool. Id. Plaintiff, also on 6/13/07, told defendant Barron-McGuire about the stool condition and although she stated that she would inform the medical staff, nothing happened. Id. When on 6/14/07, he again complained of the condition to defendant Barron-McGuire, she said again that she would call the medical department. Id. Thereafter, plaintiff went "man down" to denote a medical emergency. When defendant Caldwell "finally" showed up during her regular rounds, she said no one had called the medical department, and she did nothing in response to the "man down." Id. Plaintiff was not called to the doctor's line on 6/15/07, but did that night receive medication back-dated to 6/14/07. Id. At an unspecified point after defendant Caldwell had left, defendant Hayes and another officer (Tassey, previously dismissed as a defendant), came by to observe the blood "knowing" that plaintiff had already flushed the toilet. Id. Nothing was done for plaintiff. AC, p. 7.

Plaintiff lists the following grievances filed at HDSP (some referenced above, for which he provides no dates of director's level decisions): Log no. HDSP-07-0728 (IAB no. 0615265)-denied; Log no. HDSP- 07-1465 (IAB no. 0616019)- partially granted; Log no. HDSP-07-01838 (IAB no. 0700173)-denied; Log no. HDSP-07-00443 (IAB no. 0701487)-denied. AC, p. 7. He states that he filed another medical appeal, Log no. HDSP-D-07-01948, which he did not pursue because of "a pattern with High Desert State Prison's medical department...." Id. He refers again to a medical appeal that was rejected on 3/25/07, and the reasonable modification request that was canceled. Id. Plaintiff states that Log no. HDSP-D-07-02467 was granted in part on 7/18/07, in a staff complaint response concerning his grievance regarding the lack of response to his blood in stool condition in mid-June of 2007. AC, pp. 7, 15-19. Id. Plaintiff references a 9/05/07 director's level review attached to his complaint, showing four appeals screened out for not having been completed through the second level of review, but states that those appeals were never returned to be completed. Id.

By this amended complaint, the gravamen of which is the alleged violation of his Eighth Amendment rights in the form of deliberate indifference to and inadequate medical care for his serious medical needs, plaintiff seeks declaratory and injunctive relief, as well as money damages. AC, pp. 7-9.

Motion to Dismiss

Defendants move for dismissal pursuant to non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure for plaintiff's alleged failure to exhaust his administrative remedies before bringing suit. Motion to Dismiss (MTD), pp. 1-10.

Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)

In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. ...


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