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Banks v. Tan

February 6, 2009

ABRAHAM E. BANKS, PLAINTIFF,
v.
RICHARD TAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are defendants' motions for summary judgment (Docs. 28 and 29).

I. BACKGROUND

This action proceeds on plaintiff's original complaint. Service was found to be appropriate for defendants Tan, Blanks, Young, Phillip, Lee, Marlow, James, and Rohlfing. Defendants Tan, Blanks, Young, Marlow, and James appeared in the action by way of their answer to the complaint. Defendant Rohlfing appeared by way of a separate answer. Defendants Phillip and Lee have been dismissed for failure to effect timely service of process as required by Federal Rule of Civil Procedure 4(m).

Based on testimony plaintiff gave at his deposition, his claims in this case are based solely on alleged deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. According to defendants, the following facts are not in dispute:*fn1

1. During his incarceration at the Sacramento County Jail, plaintiff sustained injuries during a riot in June 2003;

2. Plaintiff's injuries consisted of a fracture of the fourth metacarpal bone in the right hand;

3. Plaintiff was taken to the hospital where he was treated by an orthopedic specialist, x-rays were taken, and a cast was placed on plaintiff's right hand;

4. Plaintiff was transferred to Deuel Vocational Institute ("DVI") on July 10, 2003;

5. Upon his arrival at DVI, plaintiff was medically screened by defendant Blanks, a registered nurse;

6. As part of the screening process, defendant Blanks reviewed plaintiff's medical records and a form entitled "Confidential Medical/Mental Health Transfer";

7. The "Confidential Medical/Mental Health Transfer" form indicated that plaintiff was receiving Motrin tablets, 800 mg, one tablet twice daily, but that plaintiff did not need immediate medical attention;

8. Defendant Blanks noted during the screening process that plaintiff had fractured his right hand two weeks earlier;

9. Defendant Blanks authorized plaintiff to go to the medical clinic at DVI for further evaluation and possible replacement of his cast, which had been removed as part of the transfer process;

10. Defendant Blanks had no other contact with plaintiff;

11. Plaintiff was seen by defendant Young, a registered nurse at DVI, on July 14, 2003;

12. At the time he was seen by defendant Young, plaintiff denied having any medical problems other than his right hand injury and defendant Young noted that plaintiff had tested negative for tuberculosis and, for this reason, did not require a chest x-ray;

13. Defendant Young had no other contact with plaintiff;

14. After seeing defendant Young, plaintiff was seen by a prison doctor who ordered that another x-ray of the right hand be taken and that plaintiff be provided Ibuprofen;

15. On July 18, 2003, plaintiff reported to the medical clinic at DVI and stated that the x-ray ordered on July 14th had never been taken;

16. Plaintiff was seen by a doctor who noted swelling of the right hand, but no bruising;

17. Plaintiff was then taken to radiology and an x-ray of the right hand was taken which indicated "comminuted fracture mid-right fourth ...


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