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Kunkel v. Dill

December 14, 2009

PATRICK KUNKEL, PLAINTIFF,
v.
N. DILL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING CERTAIN CLAIMS

(Doc. 8)

Plaintiff Patrick Kunkel ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Kern Valley State Prison ("KVSP") in Delano, California. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth and Fourteenth Amendments. Plaintiff names C. Pfeiffer (appeals coordinator), Dileo (medical doctor), Mohammad Ali (nurse), N. Dill (associate warden), H. Tyson (captain), Araich (nurse), M. Mendoza (dental assistant), S. Adame (office tech), Mackey (nurse), Sharon Zamora (health care manager), Robaina (nurse), Sherry Lopez (chief medical officer), and Guadalupe M. Garcia (dentist) as defendants. For the reasons set forth below, the Court finds that Plaintiff's First Amended Complaint states cognizable claims against Defendants Garcia, Mendoza, Araich, Mackey, Robaina, Dileo, Dill, Pfeiffer, Ali, and Zamora for violation of the Eighth Amendment. Plaintiff's remaining claims under the Fourteenth Amendment and against Defendants Tyson, Adame, and Lopez will be dismissed without leave to amend.

I. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

II. Background

A. Procedural Background

Plaintiff filed the Original Complaint in this action on April 17, 2009. (Doc. #1.) The Court screened Plaintiff's Original Complaint on September 1, 2009. (Doc. #7.) The Court found that Plaintiff's Original Complaint stated some cognizable claims and gave Plaintiff the option of either proceeding only on the claims found to be cognizable or filing an amended complaint that cured the deficiencies in the claims that the Court found non-cognizable. Plaintiff filed his First Amended Complaint on October 8, 2009. (Doc. #8). This action proceeds on Plaintiff's First Amended Complaint.

B. Factual Background

Plaintiff claims that Defendants violated his rights under the Cruel and Unusual Punishments Clause of the Eighth Amendment through their failure to provide adequate dental treatment and medical treatment. Plaintiff claims that he had serious medical needs with respect to a broken tooth and with respect to an injury to his ankle.

Plaintiff broke his tooth on July 18, 2006. (Compl. ¶ 18.) Plaintiff turned in approximately 20 dental requests over the next 7 months but was not seen by dental staff. (Compl. ¶ 19.) Plaintiff alleges that it is the job of Defendants Mendoza, Adame, and Garcia to read dental requests and make sure prisoners are called in for "triage exams." (Compl. ¶ 19.) Plaintiff filed two administrative appeals concerning his lack of dental treatment. (Compl. ¶ 20.) On February 1, 2007, Plaintiff was finally seen by dental staff. (Compl. ¶ 21.) Garcia and Mendoza examined Plaintiff and told him that there was a deep hole that needs to be filled right away. (Compl. ¶ 23.) Plaintiff was told that he would be called back within a week to fix the problem. (Compl. ¶ 24.)

On February 8, 2007, Plaintiff was called to dental to be interviewed about his administrative appeal. (Compl. ¶ 25.) Defendants Adame, Garcia, and Mendoza were present. (Compl. ¶ 25.) Plaintiff's administrative appeal requesting that his tooth be fixed was granted, but Plaintiff was not given immediate treatment. (Compl. ¶ 25.) Plaintiff asked why his tooth would not be fixed that day and Mendoza told Plaintiff that they will fix the tooth when dental staff are ready. (Compl. ¶ 25.) Over the next four months, Plaintiff filed approximately 15 dental requests and three administrative appeals seeking dental treatment. (Compl. ¶ 26-27.) In April 2007, Plaintiff requested an "Olsen review" of his medical file. (Compl. ¶ 28.) Plaintiff was called in for an Olsen review on May 24, 2007. (Compl. ¶ 30.) Plaintiff was told that his medical file was not there because "A-yard dental" had it. (Compl. ¶ 30.) When Plaintiff received his medical file, almost all of his dental records were missing. (Compl. ¶ 31.) When Plaintiff got back to A-yard, Plaintiff spoke with Mendoza about the missing dental records, and Mendoza told Plaintiff that she did not have his records. (Compl. ¶ 32.) Plaintiff claims that Mendoza, Adame, and Garcia lied because they actually did have Plaintiff's file. (Compl. ¶ 33.) Plaintiff filed an administrative appeal concerning his missing dental records and sent a copy of the appeal to Defendant Dill. (Compl. ¶ 34.)

On May 25, 2007, Plaintiff was brought into dental to fix his tooth. (Compl. ¶ 36.) Plaintiff was told by Garcia that the hole was so large and close to the nerve that the tooth might have to be pulled. (Compl. ¶ 36.) Garcia filled the cavity the same day. (Compl. ¶ 37.) While having his cavity filled, Plaintiff saw his dental records that were missing and requested a copy. (Compl. ¶ 37.) Plaintiff's request was refused and Plaintiff was told that he had to file an Olsen review. (Compl. ¶ 37.) Plaintiff filed an Olsen review on May 25, 2007, but many of the "original requests" had been thrown out. (Compl. ¶ 38.) Plaintiff alleges that Garcia, Mendoza, and Adame were at fault for the missing requests because they were the last persons to have access to Plaintiff's records. (Compl. ¶ 38.) Plaintiff alleges that Defendants intentionally lost Plaintiff's records because they found out about a pending lawsuit and wanted to "cover" themselves. (Compl. ¶ 39.)

Plaintiff was told that dental staff had tried to call Plaintiff into dental to fix his tooth between February 1, 2007 and May 25, 2007, but "PSRs" or "custody issues" prevented Plaintiff from being brought in. (Compl. ¶ 40.) Plaintiff contends that either dental staff are lying about their attempts to summon Plaintiff, or Defendant H. Tyson is at fault for canceling the appointments. (Compl. ¶ 41.)

After Plaintiff's tooth was fixed on May 25, 2007, Plaintiff filled out another request for treatment because the numbing agent wore off. (Compl. ¶ 44.) Adame answered an administrative appeal on June 8, 2007 and informed Plaintiff that he would be seen within two weeks. (Compl. ¶ 47.) Plaintiff was not seen until July 6, 2007. (Compl. ¶ 44, 47.) On August 29, 2007, Plaintiff's tooth was pulled "due to a peno ab[s]cess, periapreal ab[s]cess and irr[e]versible palpitis" on his tooth. (Compl. ¶ 48.)

Plaintiff alleges that his mother called Defendant Nate Dill several times between February 1, 2007 and August 29, 2007 and informed Dill of Plaintiff's dental needs. (Compl. ¶ 45.) Plaintiff also wrote to Dill several times asking for help. (Compl. ¶ 46.) Plaintiff thus alleges that Dill was placed on notice of a serious problem and did nothing to make sure that the problem was addressed. (Compl. ¶ 45.)

On June 26, 1998, Plaintiff was shot in the ankle and knee and had a mental plate placed in his ankle. (Compl. ¶ 64.) On November 25, 1998, Plaintiff's ankle was not healing correctly and he received a bone graft. (Compl. ¶ 65.) On August 13, 1999, Plaintiff experienced pain and was taken to Arrowhead Regional Medical Center and was scheduled to have the metal plate removed. (Compl. ¶ 66.) On September 16, 1999, Plaintiff was transferred to the California Department of Corrections with a transfer form stating that the metal plate had to be removed from his ankle. (Compl. ¶ 67.) On December 1, 2004, Plaintiff was seen by an orthopedic specialist. (Compl. ¶ 68.) The specialist recommended that the metal plate be left in Plaintiff's ankle until the pain became more severe. (Compl. ¶ 68.) In the fall of 2006, the pain in Plaintiff's ankle became more severe and Plaintiff was seen by Defendant Akanno. (Compl. ¶ 69.) In January 2007, Plaintiff was put on pain medication by Akanno for his ankle pain. (Compl. ¶ 70.)

On June 15, 2007, Plaintiff was seen by Defendant Araich, who ordered x-rays, a pediatrist consult, and increased pain medication. (Compl. ¶ 71.) Plaintiff was also told that he would receive an orthopedic consult. (Compl. ¶ 71.) On July 15, 2007, Plaintiff was taken off his pain medication before he received any x-rays, a pediatrist, or an orthopedic consult. (Compl. ¶ 72.) Plaintiff was left in constant pain. (Compl. ¶ 72.) Plaintiff alleges that this was done without looking through Plaintiff's file. (Compl. ¶ 72.) Plaintiff filed numerous medical requests for pain treatment between July 15, 2007 and October 2007. (Compl. ¶ 73.) On July 20, 2007, Araich was supposed to request an orthopedic consult but failed to file the proper paperwork. (Compl. ¶ 74.) Araich wrote in Plaintiff's file that he did not appear to be in pain because he laughed at a guard's joke. (Compl. ¶ 74.) On July 20, 2007, Plaintiff received x-rays. (Compl. ¶ 75.) On August 9, 2007, Defendant Mohammad Ali read Plaintiff's medical appeal and Plaintiff was seen by Araich the next day. (Compl. ¶ 77.) On August 10, 2007, Plaintiff was told by Araich that he was not receiving pain medication because Araich believed that Plaintiff was manipulative and faking his symptoms. (Compl. ¶ 78.) Plaintiff recommended an orthopedic consult and filed the proper paperwork.

(Compl. ¶ 78.) On August 20, 2007, Plaintiff requested to see the pain specialist because he believed that Araich was deliberately making Plaintiff suffer. (Compl. ¶ 79.) Plaintiff requested a second opinion about his condition but Araich refused. (Compl. ¶ 79.)

On September 6, 2007, Plaintiff was seen by a specialist who recommended that Plaintiff be scheduled for surgery and the metal plate removed from his ankle as soon as possible. (Compl. ¶ 80.) On September 9, 2007, Plaintiff placed a medical request but his request was denied again by Araich. (Compl. ¶ 81.) Plaintiff alleges that Araich denied Plaintiff's appeal because Plaintiff complained about Araich in a prior administrative appeal. (Compl. ¶ 81.) On September 16, 2007, Araich filed the paperwork for Plaintiff to see the podiatrist. (Compl. ¶ 82.) On September 18, 2007, Plaintiff was seen by the podiatrist and received a cortazone shot in the ankle. (Compl. ¶ 83.) Plaintiff was also warned about the dangers of a "gangleous cyst" on the side of his ankle. (Compl. ¶ 83.) On October 30, 2007, the podiatrist recommended that Plaintiff receive surgery to remove the cyst. (Compl. ¶ 84.) The podiatrist also noticed an infection over the "screw area" of the metal plate that gave Plaintiff "problems." (Compl. ¶ 84.) Plaintiff was seen by Araich the same day, who claimed that Plaintiff's ankle sores were self-inflicted. (Compl. ¶ 85.)

On November 14, 2007, Plaintiff received surgery to remove the metal plate in his ankle. (Compl. ¶ 86.) Plaintiff was told that only two screws were removed because the rest got stripped and the plate remained in his ankle. (Compl. ¶ 86.) Plaintiff was told that if the pain persisted, he should file another request to remove the screws and plate. (Compl. ¶ 86.)

When Plaintiff returned to KVSP after receiving surgery, Plaintiff was denied any pain medication or an ice pack. (Compl. ¶ 87.) Plaintiff was told by medical staff in "CTC" that the medical staff at the "building" would handle it. (Compl. ¶ 87.) When Plaintiff arrived at the building, there was no medical staff available. (Compl. ¶ 87.) Plaintiff was forced to go "man down" at night to receive pain medical and an ice pack. (Compl. ¶ 87.)

On November 15, 2007, Plaintiff was told by medical staff that he would not receive pain medication until the next day. (Compl. ¶ 88.) Plaintiff filed an administrative appeal concerning the lack of post-op care. (Compl. ¶ 89.) Plaintiff was seen by Araich on November 16, 2007. (Compl. ¶ 90.) Plaintiff informed Araich that neither the metal plate nor the cyst was removed, but Araich did not believe Plaintiff. (Compl. ¶ 90.) On November 18, 2007, Plaintiff was told by Araich that he would not receive an ice pack even though one was ordered for him previously. (Compl. ¶ 91.) Medical staff contacted Akanno, who wrote the initial prescription, but Plaintiff was only give a single ice pack for that night. (Compl. ¶ 91.) Plaintiff was denied ice packs after that night and the swelling in his ankle worsened, causing the stiches to rip and leak fluid. (Compl. ¶ 92.) Araich refused to do anything and told Plaintiff to file another appeal. (Compl. ¶ 92.) On November 21, 2007, Araich filed the paperwork for Plaintiff to see an orthopedic specialist. (Compl. ¶ 93.) On November 25, 2007, Plaintiff filed more medical requests due to the extreme swelling in his ankle, lack of ice packs, blood leaking from the sutures, and discoloration up and down his leg. (Compl. ¶ 94.) Plaintiff's sutures were removed on December 4, 2007. (Compl. ¶ 96.) On December 10, 2007, Plaintiff made another medical request because his ankle was still red and leaking fluids. (Compl. ¶ 97.)

On December 13, 2007, Plaintiff was seen by an orthopedic surgeon. (Compl. ¶ 98.) On March 3, 2008, Plaintiff was seen again by the podiatrist, who recommended that Plaintiff see an "orthotist[sic]" to receive special shoes to support his ankle. (Compl. ¶ 99.) Plaintiff saw the podiatrist again on June 2, 2008 and received a cortazone shot. (Compl. ¶ 100.) The podiatrist submitted paperwork to see the "orthotist[sic]" to receive special shoes. (Compl. ¶ 100.) Plaintiff did not see an "orthotist[sic]" for shoes until September 9, 2008. (Compl. ¶ 101.) On September 29, 2008, Plaintiff began receiving pain medication from Dr. Patel. (Compl. ¶ 102.) On October 15, 2008, Plaintiff went to see the "orthotist[sic]" because the wrong-sized shoes were ordered. (Compl. ¶ 104.) On January 5, 2008, Plaintiff submitted a medical request about his shoes and was told by registered ...


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