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Rodgers v. Tilton

November 9, 2009

KEVIN RODGERS, PLAINTIFF,
v.
JAMES TILTON, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On March 10, 2009, defendants moved to dismiss this action, arguing that plaintiff has failed to exhaust available administrative remedies prior to bringing suit and that plaintiff's complaint fails to state a cognizable claim for relief. Plaintiff has filed an opposition, and defendants have filed a reply.

BACKGROUND

Plaintiff is proceeding on his original complaint against defendants Athanassious, Moreno, Pettigrew, Whitten, and Wyant. Therein, he alleges as follows. On August 18, 2006, defendant Pettigrew opened the door to Dorm 3 and asked plaintiff if he needed medication either because he had been dropped on his head or had been on some kind of drugs prior to being incarcerated. Plaintiff approached the door and placed his hand on the door frame. Defendant Pettigrew slammed the door shut, pinning plaintiff's finger between the metal door and the door frame. Plaintiff screamed in pain and told defendant Pettigrew that his finger was cut off and bleeding. Defendant Pettigrew laughed until he saw plaintiff's blood pooled on the floor. Defendant Pettigrew then yelled "man down" and asked another inmate to retrieve a towel. (Compl. at 11.)

Plaintiff was taken to the B-1 Clinic where defendant Athanassious attempted to re-attach his crushed and severed digit. Defendant Athanassious stitched and dressed plaintiff's finger and provided him with pain medication. On August 31, 2006, plaintiff had an appointment with defendant Athanassious to have the stitches removed and to treat his pain and possible infection. However, defendant Athanassious was not there, so Nurse Rubio removed plaintiff's stitches. Nurse Rubio informed plaintiff that his finger looked bad because it was swollen and pus was coming from the wound. Plaintiff's finger also smelled bad, and there was dead tissue surrounding exposed bone. Nurse Rubio asked the physician on duty to look at plaintiff's finger. The physician determined that plaintiff needed to go to an outside hospital to have a specialist examine him. Shortly thereafter, defendant Athanassious came in and looked at plaintiff's finger. He said that plaintiff should continue to change the dressing on his finger, use benedyne soaks and prescribed a stronger antibiotic for plaintiff. (Compl. at 20-21.)

On September 7, 2006, plaintiff went back to the B-1 Clinic because he was in unbearable pain and believed that his infection was getting worse. He saw Dr. Long who asked him why he was soaking his finger in benedyne. Plaintiff told him that defendant Athanassious recommended the treatment. Dr. Long told the nurse on duty to soak plaintiff's finger in peroxide. He also had plaintiff admitted to the G-1 Hospital. (Compl. at 21.)

On September 8, 2006, plaintiff was unable to urinate, so Dr. Calvo ordered a catheter for him. He sent plaintiff to B-2 Surgery where defendant Athanassious was ready to perform the procedure. According to plaintiff, defendant Athanassious grabbed his penis and started to push the catheter in, but at some point he met resistance because it would not go in any further. Defendant Athanassious attempted to force the catheter in as plaintiff screamed in pain, asking for him to stop because he was hurting plaintiff. The medical technical assistant had to hold plaintiff down during this incident. Plaintiff repeatedly asked defendant Athanassious to stop, but he kept shoving the catheter further and told plaintiff to keep his mouth shut and that he was being a baby. After fifteen to twenty minutes the catheter was in, but plaintiff could barely move or stand. When plaintiff returned to his room, he could not sit or lay down and moving was painful. Plaintiff could only stand in his room in one place for nearly an hour until Dr. Calvo told a nurse to remove his catheter. Once the catheter was out, plaintiff began to bleed and bled for three days thereafter. (Compl. at 23-24.)

Plaintiff was rushed to Doctor's Hospital to see a specialist with regards to his finger. While at the hospital, medical personnel were unable to bring his infection under control and informed plaintiff that they would need to amputate half of his finger. According to plaintiff's specialist, the bone in plaintiff's finger could not be salvaged and should have been amputated at the time of his injury. Plaintiff stayed at Doctor's Hospital receiving treatment until September 13, 2006. (Compl. at 22.)

After plaintiff returned to California Medical Facility ("CMF"), Sergeant Brida called defendant Wyant to inquire about bed space availability for plaintiff. Defendant Wyant confirmed that there was an opening on J-Wing, the same unit in which defendant Pettigrew worked. Defendant Wyant informed Sergeant Brida that plaintiff had a staff complaint pending against defendant Pettigrew and that if plaintiff dropped the complaint he would be able to move to J-Wing. Sergeant Brida told defendant Wyant that plaintiff would drop the staff complaint but then told plaintiff not to mention to defendant Wyant that he had no actual intention of dropping the complaint. (Compl. at 12-13.)

Plaintiff alleges that, on September 20, 2006, defendant Wyant called plaintiff to the staff break room. Plaintiff believed that defendant Wyant was going to interview him about his staff complaint. Instead, defendant Wyant accused plaintiff of not typing his complaint and insisted that plaintiff drop the complaint and pursue a claim against the CMF maintenance department instead because the doors, including the one which injured plaintiff, were in poor condition. Plaintiff told defendant Wyant that he would not drop his complaint but that he would think about their discussion. Plaintiff then asked defendant Wyant if he could move to Dorm 5, and Wyatt said "yes." (Compl. at 13.)

Defendant Wyant later spoke with defendant Pettigrew who approached plaintiff and asked about his intent to move to Dorm 5. Pettigrew told plaintiff that the inmates in Dorm 5 did not want plaintiff there because he was too hyper and that. Defendant Pettigrew then told the inmates in Dorm 5 to vote to exclude plaintiff, which they did. Defendant Pettigrew told plaintiff that he was instead being moved to an upper bunk in Unit 3. Plaintiff told Pettigrew that he had a medical chrono for housing in a lower tier and lower bunk for medical reasons. Defendant Pettigrew said he did not care and asked plaintiff if he would like to get "cuffed up." Plaintiff responded "no" and began packing his things. Officer Tis took plaintiff upstairs where plaintiff showed Sergeant Thomas his medical chrono. Sergeant Thomas asked plaintiff if defendant Pettigrew was aware of his chrono, and plaintiff responded "yes." Sergeant Thomas then told defendant Pettigrew and plaintiff that plaintiff's move was cancelled. Defendant Pettigrew ordered plaintiff to return to his cell but not to unpack because he would not still be there the following day. (Compl. at 14-15.)

On the same night, plaintiff went to see Lieutenant Norris and told him that he merely wanted defendant Pettigrew to leave him alone. Lieutenant Norris assured him that defendant Pettigrew would leave him alone in the future. (Compl. at 15.)

On or about September 1, 2006,*fn1 an unknown officer awoke plaintiff from his sleep and placed him in handcuffs. He informed plaintiff that defendant Moreno wanted to see him and escorted him to his office. Plaintiff asked defendant Moreno to loosen or remove the handcuffs because they were too tight and causing him severe pain. Defendant Moreno said "first, we have something to talk about before the cuffs come off." An unknown officer then told defendant Moreno about plaintiff's recent surgery, and defendant Moreno told the escorting officer to remove the cuffs. Defendant Moreno then gave plaintiff a worker's compensation form and told him to sign it. Plaintiff explained that he had previously refused to sign the form when Lieutenant Norris gave it to him because his injury did not occur at work, and he would be committing fraud if he signed a worker's compensation form. Defendant Moreno then told plaintiff to sign the document or face lock-up. He also summoned plaintiff's psychologist to convince him to sign the form. Lieutenant Norris then came in and took plaintiff out of the office. (Compl. at 15-17.)

Not long thereafter, plaintiff encountered defendant Moreno while sweeping a hallway. Evidently, defendant Moreno heard plaintiff talking to himself and said "I knew I should have put your J-Cat ass in the E.O.P. when I had the chance." (Compl. at 17-18.)

On October 11, 2006, plaintiff was walking back to his cell from breakfast. He noticed defendants Pettigrew and Whitten looking through the crowd of inmates returning from the chow hall. They approached plaintiff, and defendant Whitten grabbed a shake out of plaintiff's hand. He threw it and the rest of plaintiff's lunch on the floor and ordered him to put his hands on the wall. Whitten began to conduct a clothed search of plaintiff and man-handled nearly every part of plaintiff's body. Plaintiff informed Whitten that he was hurting him, but defendant Whitten continued his abusive search. Defendant Whitten grabbed plaintiff's buttocks and squeezed exceptionally hard, causing plaintiff excruciating pain because he had a staph infection and abscesses in the area. Plaintiff moved his right hand down to his buttocks, and defendant Whitten then placed plaintiff in handcuffs, causing him pain in his fingers and hands. Plaintiff tried to tell defendant Whitten that he did not intend to remove his hand from the wall, but defendant Whitten said he did not care about plaintiff's abscesses and dragged him down the hallway. Meanwhile, defendant Pettigrew stood by smiling. (Compl. at 18-19.)

Defendant Whitten placed plaintiff in a room and ordered him to pull his pants down to his ankles and bend over so that he could see plaintiff's abscesses and then place him in a cage. At that point, defendant Wyant appeared, and plaintiff informed him of defendant Whitten's conduct. Defendant Wyant said that plaintiff was lucky because defendant Whitten was worse years ago. (Compl. at 19.)

PLAINTIFF'S CLAIMS

On October 8, 2008, the court found that plaintiff's complaint appeared to state cognizable claims for relief under 42 U.S.C. § 1983 against defendants Athanassious, Moreno, Pettigrew, Whitten, and Wyant. Specifically, the court concluded that, liberally construed, plaintiff's complaint appeared to state the following claims: (1) defendant Pettigrew used excessive force when he slammed plaintiff's finger in the door in violation of the Eighth Amendment; (2) defendant Athanassious provided plaintiff with inadequate medical care for plaintiff's finger injury and in connection with the insertion of his catheter in violation of the Eighth Amendment; (3) defendants Moreno, Pettigrew, Whitten, and Wyant conspired to retaliate against plaintiff for filing a staff complaint against defendant Pettigrew; and (4) defendants Moreno, Pettigrew, Whitten, and Wyant retaliated against plaintiff in violation of the First Amendment. (Compl. at 27-31.)

DEFENDANTS' MOTION TO ...


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