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Tatmon v. Hartley

June 18, 2009

PERRY L. TATMON, PLAINTIFF,
v.
JAMES D. HARTLEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge

REPORT AND RECOMMENDATION

Currently pending before the Court are the following motions: Plaintiff's Motion for Temporary Injunctive and Declaratory Relief (Docket No. 7); Plaintiff's Motion for Temporary Injunctive and Declaratory Relief (Docket No. 8); Plaintiff's Request for: Order to Show Cause Temporary Restraining Order and Protective Order (Docket No. 9); Plaintiff's Motion to Strike Defendant Untimely Answer and for Entry of Default (Docket No. 43); Plaintiff's Emergency Request to Set a Hearing for Temporary Restraining Order and Protective Order (Docket No. 52); Defendants Chabak, Hartley, Mayoral, Merrill, Pappenfus and Pennywell's Motion to Dismiss (Docket No. 53); Plaintiff's Motion for Extension of Time (Docket No. 62); and Plaintiff's Emergency Motion to Compel Answers on Defendants (Docket No. 64). Having reviewed the Motions, Responses and relevant portions of the record, the Court concludes that oral argument is unnecessary to resolve the Motions. Accordingly, the Court enters the following Report and Recommendation.

REPORT

I. FACTUAL BACKGROUND

Plaintiff Perry L. Tatmon ("Plaintiff"), a prisoner at Avenal State Prison ("ASP"), brings this complaint pursuant to 42 U.S.C. § 1983, alleging that Defendants acted with deliberate indifference to his medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. The Defendants include James D. Hartley, Lonnie Watson, Sandra Pennywell, Ellen Greenman, Erica Wienstein, S. Suryadevara, Kathy Jones, Y. Paik, John Pappenfus, Julie Dukes, Richard Merrill, Delacruz, Fabiola Mayoral (sued as Myoral), Steven Chabak, E. Everett, and Lorraine Avalos (sued as Avala).

Plaintiff's Complaint alleges that he suffered a severe injury to his left hip on November 11, 2002 at Pleasant Valley State Prison. He was transferred to ASP on April 29, 2003. Plaintiff alleges that while he was housed at ASP Defendants were deliberately indifferent to his hip injury, including delayed treatment, improper treatment and failure to receive physical therapy after hip surgery. He alleges that he attempted on several occasions to get treatment for his hip and filed a 602 inmate appeal on September 20, 2004 against Defendant Pappenfus for denial of medical care.

In January 2005, Plaintiff claims he injured his left foot, breaking a bone of the heel and damaging the Achilles tendon. Plaintiff claims he was seen by Dr. Yen on March 17, 2005. A request for service was ordered for Plaintiff to be examined by an orthopedic specialist for his injured foot and hip.

Plaintiff alleges he was examined by Dr. Blackwell on April 25, 2006 and was once again referred to an orthopedic specialist. On June 7, 2006, Plaintiff alleges Dr. R. Gonzales gave him an urgent referral for orthopedic consultation. On July 20, 2006, Plaintiff alleges he filed a 602 inmate appeal against Defendant Nurse Dukes for hindering or interfering with his efforts to acquire medical care.

On April 9, 2007, Plaintiff alleges he was seen by Defendant Dr. Paik who informed Plaintiff he needed hip replacement surgery. On May 23, 2007, Plaintiff underwent hip replacement surgery at Mercy Hospital in Bakersfield, California and was released on May 30, 2007.

On May 31, 2007, Plaintiff alleges he was examined by Dr. Castillo who referred him for physical therapy. On June 18, 2007, Plaintiff claims he was transported to Pacific Orthopedic Medical Group (P.O.M.G.) for follow-up after surgery. He also alleges he was seen by Dr. Paik who recommended physical therapy and a follow-up appointment in 60 days.

Plaintiff alleges he did not receive physical therapy until October 15, 2007 which has resulted in complications in the healing process and additional pain.

Plaintiff claims on several occasions he was denied pain medication. He filed a 602 complaint against Defendant Delacruz on August 24, 2007 for denial of prescribed pain medication and against Defendant Mayoral on September 3, 2007 for the same reason.

He also claims on August 24, 2007, he was examined by Podiatry at ASP and was to return in thirty days. Plaintiff asserts he has not since returned to podiatry.

On September 3, 2007, Plaintiff alleges he was transported to P.O.M.G. for follow-up care. Upon returning, he did not receive any physical therapy. On October 15, 2007, Plaintiff alleges he filed 602 complaints against Defendant Watson and Defendant Pennywell for denial and delay of adequate medical care. He also alleges he filed a complaint against Defendant Avalos on November 17, 2007.

II. PENDING MOTIONS

A. Motions for Temporary Injunctive and Declaratory Relief, Protective Order and Emergency Hearing

Plaintiff has filed four motions (Docket No. 7, 8, 9, 52) for temporary injunctive and declaratory relief or entry of a protective order. In these motions, Plaintiff complains of alleged retaliatory conduct by correctional guards. Plaintiff believes these actions have been taken in response to his filing of this lawsuit. Plaintiff seeks an order from the Court preventing further retaliatory conduct. Plaintiff cites to several instances of alleged retaliation that are factually unrelated to the claims in this case. The alleged perpetrators are not defendants in this case. The actual Defendants are not alleged to have taken any such action against Plaintiff. Plaintiff may bring these unrelated claims of retaliation in a separate lawsuit if he wishes; however, he may not pursue them in this case. See Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994).

In Devose, the court explained:

A court issues a preliminary injunction in a lawsuit to preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the lawsuit's merits. See Dataphase Sys., Inc., v. C L Sys., Inc., 640 F.2d 109, 113 & n. 5 (8th Cir. 1981) (en banc). Thus, a party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint. See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975). It is self-evident that Devose's motion for temporary relief has nothing to do with preserving the district court's decision-making power over the merits of Devose's 42 U.S.C. ยง 1983 lawsuit. To the contrary, Devose's motion is based on new assertions of mistreatment that are entirely different from the claim raised and the relief requested in his inadequate medical treatment lawsuit. Although these new ...


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