The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER AND ORDER DISMISSING IN PART PLAINTIFF'S AMENDED COMPLAINT
On August 14, 2009, Plaintiff filed his most recent amended complaint. After reviewing the amended complaint, the Court finds that certain claims are clearly deficient and, therefore, are DISMISSED. If the allegations of the remaining claims in the amended complaint are proven, Plaintiff has a reasonable opportunity to prevail on the merits of this action.
State prisoner, Jesse E. Bejaran, ("Plaintiff") is incarcerated at California State Prison, located in Corcoran, California. On April 14, 2008, proceeding pro se, Plaintiff filed a prisoner civil rights complaint and an application to proceed in forma pauperis. (Doc. ## 1 & 2.) The Court granted the in forma pauperis application on January 8, 2009. (Doc. # 6.) In his complaint, Bejaran alleges that employees of the Deuel Vocational Institute in Tracy, California ("DVI Tracy"), were deliberately indifferent to his serious medical needs.
Plaintiff brings these claims pursuant to 42 U.S.C. § 1983, alleging that the California Department of Correctional Rehabilitation ("CDCR") and DVI Tracy employees Correctional Officer ("C/O") Mayes, C/O Huesel, C/O Braga, C/O Loiler, C/O Franco, C/O Cardoza, C/O Mendoza, Physician Assistant ("P/A") Street, Sergeant ("Sgt.") Hughes, Lieutenant ("Lt.") Ruiz, and Lt. Rodriguez (collectively, "Defendants") acted with deliberate indifference to his medical needs, health, and safety. Plaintiff alleges that Defendants: (1) denied him a cane; (2) denied Plaintiff housing on the first tier; (3) denied Plaintiff medical treatment and medication; and (4) ignored the prison's "inmate escort policy."
Plaintiff was determined to be an American with Disabilities for existing leg injuries on October 12, 2007. Doctors at DVI Tracy also established that Plaintiff was disabled almost two weeks later. Nevertheless, Plaintiff was ordered to move to the second tier of the prison despite the fact that most disabled prisoners were housed on the first tier. Plaintiff was required to walk up the stairs with all his belonging to the second tier.
On November 13, 2007, Dr. Oandasan ordered that Plaintiff be given a cane and for Plaintiff to be housed on the lower tier as is customary for prisoners with disabilities. Three days later, Plaintiff asked P/A Street for a cane. On that same day, Plaintiff alleges P/A Street denied his request and told Plaintiff he was not disabled.
Six days later, Plaintiff alleges C/O Braga put mechanical restraints on Plaintiff and ordered him to go up the flight of stairs with no escort. C/O Braga ordered this despite Plaintiff's classification as a maximum custody inmate, and her prior knowledge of Plaintiff's injuries. Plaintiff proceeded up the stairs per C/O Braga's orders when his right leg went out and Plaintiff fell down seven steps. C/O Braga was informed by an inmate of Plaintiff's fall and she then went to check on him. C/O Braga called a nurse over to check on Plaintiff because he could not feel his legs. The nurse concluded that a gurney would be needed to transport Plaintiff to the infirmary for further examination. Plaintiff contends he remained without medical treatment and in his handcuffs for approximately four hours after his fall under the supervision of C/O Cardoza and C/O Franco.
C/O Franco eventually transported Plaintiff in a wheelchair against Plaintiff's wishes, causing him severe back pain. While in the wheelchair, Plaintiff asked C/O Franco for a cane and requested to be moved to the first tier. C/O Franco asked C/O Loiler if Plaintiff could have a cane and be moved, and C/O Loiler denied both of Plaintiff's requests, so C/O Franco returned Plaintiff to his cell on the second floor.
Due to Plaintiff's fall, he placed sick call forms to see doctors for his injuries. Although he had appointments on November 27, 2007, December 6, 2007, December 9, 2007, and December 11, 2007, each time he could not receive treatment because his file was unavailable.
On November 20, 2007, Dr. Oandasan told Plaintiff he signed papers authorizing him to move to the first tier and to be given a cane. On that same day, Plaintiff asked C/O Castro and Sgt. Hughes for a cane. Sgt. Hughes told Plaintiff that he would look into the matter. The following day, Plaintiff asked Lt. Ruiz for a cane. In the same conversation, Lt. Ruiz asked Plaintiff why he was not housed on the first tier like the other disabled prisoners. Lt. Ruiz informed the Plaintiff that she would look into the matter. Plaintiff did not receive a cane until more than a month later, on December 22, 2007.
On November 23, 2007, Plaintiff saw the doctor for an unrelated ailment. After some inquiries, Dr. Nguyen determined that Plaintiff needed to be transferred back to the first tier. Plaintiff moved that same day.
Plaintiff visited P/A Street about severe lower back pain on December 12, 2007. P/A Street refused to examine Plaintiff or give him medication. Again on December 27, 2007, P/A Street refused to examine Plaintiff's lower back or provide him with medication for the pain. Consequently, Plaintiff filed an appeal against P/A Street and two days later, Dr. Duggar gave Plaintiff the medication that P/A Street previously denied him. On January 4, 2008, Plaintiff sent a letter to Warden Moore explaining his medical needs.
At approximately 9 a.m. on January 8, 2008, Plaintiff's back went out. C/O Mendoza and C/O Mayes refused to take Plaintiff to the infirmary because according to them there was no gurney available. Plaintiff was not taken to the infirmary until 4:30 p.m. after his cell mate filled out an inmate request form. Plaintiff was finally administered medication at 7:30 p.m.
On April 14, 2008, Plaintiff filed his first complaint. (Doc. # 1.) On May 8, 2008, Magistrate Judge Gregory G. Hollows granted Plaintiff's motion to proceed in forma pauperis and denied Plaintiff's motion for appointment of counsel (together the "IFP Order"). (Doc. # 6.) In the IFP Order, the Court dismissed all of Plaintiff's claims except those against Mayes, Huesel, Street, Loiler, Hughes, Ruiz, Franklin, Cardoza, and Mendoza. (IFP Order at 12.) In light of Plaintiff's pro se status, the Court granted Plaintiff leave to amend. (Id. at 11.) On May 16, 2008, Plaintiff was transferred to his present facility of incarceration, the California State Prison at Corcoran. (Doc. # 8.)
Plaintiff amended his complaint and once again filed a motion requesting appointment of counsel on May 23, 2008. (Docs. ## 11, 9.) On May 30, 2008, Plaintiff filed a second amended complaint and a motion for appointment of counsel (together, the "Second Amended Complaint"). (Docs. ## 15, 14.) On July 23, 2008, Magistrate Judge Gregory G. Hollows dismissed without prejudice Plaintiff's Second Amended Complaint because Plaintiff did not clearly identify Defendants and denied Plaintiff's motion for appointment of counsel ("July 23, 2008 Order"). (July 23, 2008 Order at 1.)
Plaintiff filed an amended complaint and made another motion for appointment of counsel on August 18, 2008 (together, the "Third Amended Complaint"). (Docs. ## 21, 22.) On October 3, 2008, Magistrate Judge Gregory G. Hollows dismissed without prejudice Plaintiff's Third Amended Complaint because Plaintiff sought injunctive relief and denied Plaintiff's motion for appointment of counsel ("October 3, 2008 Order"). (October 3, 2008 Order at 1.)
Plaintiff's claims for injunctive relief were deemed moot because Plaintiff had been transferred from the DVI Tracy to the California State Prison at Corcoran. (Id. at 2.) On October 22, 2008, Plaintiff amended his complaint and made a motion for appointment of counsel (together, the "Fourth Amended Complaint"). (Docs. ## 28, 29.) On March 2, 2009, Plaintiff made an additional request for appointment of counsel. (Doc. # 34.) On July 28, 2009 this Court dismissed Plaintiff's Fourth Amended Complaint in part with leave to amend. (Doc. # 37). On October 16, 2009 this Court denied Plaintiff's new motion for appointment of counsel. (Doc # 41.)
In the July 28, 2009 Order, this Court dismissed with leave to amend the following claims: all ADA claims, deliberate indifference against C/O Franco for denying use of a cane, deliberate indifference against C/O Franco for denying housing on the first tier, deliberate indifference against C/O Braga as to the "hands on policy," and all claims against Warden Moore. The Court allowed the following claims to proceed: deliberate indifference against P/A Street, Sgt. Hughes, Lt. Ruiz, and C/O Loiler for denying use of a cane; deliberate indifference against C/O Mayes, C/O Huesel, C/O Loiler, Lt. Ruiz, and C/O Rodriguez for denying housing on the first tier; and deliberate indifference against C/O Franco, C/O Cardoza, C/O Mayes, C/O ...