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Chrisman v. Smith

February 5, 2010

RONALD CHRISMAN, PLAINTIFF,
v.
DAVID SMITH, M.D.; M. SHERIDAN; M.X. MCCURTY; DR. RICHARDS; R.N. MARQUEZ; AND C/O ESCALANTE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Granting in Part and Denying in Part Motion to Dismiss Second Amended Complaint

Plaintiff Ronald Chrisman, a state prisoner proceeding by and through counsel, has filed a second amended complaint ("SAC") alleging Defendants violated his rights under the Eighth and Fourteenth Amendments by delaying and providing inadequate medical treatment. Defendants Smith, Sheridan, McCurty, Escalante, and Marquez now move to dismiss. Plaintiff has filed an opposition and Defendants have filed a reply. The Court found the motion appropriate for submission on the papers and without oral argument, and the January 11, 2010 hearing date was previously vacated. For the reasons set forth herein, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion to dismiss.

Factual Background

At approximately 8:30 p.m. on September 26, 2006, while he was incarcerated at the Richard J. Donovan Correctional Facility ("RJD"), Plaintiff was brutally attacked by a fellow inmate. [SAC ¶ 15.] Plaintiff suffered two blackened eyes, a broken nose, and a broken fifth finger on his left hand. [Id.] After the incident, Correctional Officer McCurty escorted Plaintiff to the medical clinic, where he was seen by Medical Technical Assistant Sheridan. [SAC ¶ 16.] Plaintiff complained to both Sheridan and McCurty that his finger was extremely swollen, immovable, very painful, and obviously fractured. [SAC ¶ 17.] Plaintiff also complained to Sheridan and McCurty regarding his nose, which was caved-in, lacerated, bleeding, and effecting Plaintiff's breathing. Finally, Plaintiff complained of extreme pain from a large bump on the back of his head. [Id.]

Despite Plaintiff's repeated complaints of severe pain, his obvious injuries, and his request for immediate medical attention, Sheridan and McCurty failed to treat Plaintiff's injuries. [SAC ¶ 18.] Instead, after Sheridan completed the necessary medical report, Sheridan told Plaintiff to return to his cell and to sign up for sick call, a process Sheridan and McCurty knew could result in a one or two week delay. [SAC ¶¶ 19-20.] Plaintiff then requested to go to the infirmary, but Sheridan and McCurty refused to take him to the infirmary; instead, Sheridan and McCurty forced Plaintiff to return to his building without medical care and in extreme pain. [SAC ¶ 21-22.] Upon his return to his housing unit, Plaintiff was sent to lock down and received no medical treatment. [SAC ¶ 27.]

The following day, September 27, 2006, Plaintiff received a pass to go to the medical clinic, where he saw Correctional Officer Escalante. [SAC ¶ 28.] Plaintiff told Escalante he was in extreme pain from his broken nose and finger, and requested medical attention. [Id.] Escalante refused Plaintiff's request for medical attention and told Plaintiff to return the following day. [Id.]

On September 28, 2006, Plaintiff returned to the medical clinic where he saw nurse Marquez. [SAC ¶ 29.] Plaintiff told Marquez he was in severe pain from his fractured left finger, and requested he be given medications and x-rays for his finger and nose. [SAC ¶ 30.] Plaintiff alleges the severity of his injuries was obvious, as his finger was extremely swollen, bruised, and immovable and his nose was caved-in on one side and bruised. [SAC ¶ 31.] Plaintiff was seen by Dr. Richards. [SAC ¶ 32.] Although Plaintiff told Dr. Richards about his pain and injuries from the assault two days prior, and despite Plaintiff's obvious need for immediate medical care, Dr. Richards refused to act immediately. [SAC ¶ 32-33.] Dr. Richards told plaintiff he ordered x-rays and pain medication, but did not immediately provide either. [SAC ¶ 35.] Marquez also told Plaintiff x-rays and pain medication had been ordered, but did not render any immediate care. [SAC ¶ 36-37.] Plaintiff alleges Dr. Richards and Marquez both knew Plaintiff would not receive pain medication for at least three days, but refused to provide him immediate care. [SAC ¶ 37.]

Plaintiff finally received x-rays of his finger on October 5, 2006, eight days after the assault, but did not receive x-rays on his nose. [SAC ¶ 38.] In addition, despite his numerous requests for pain relief, he received no pain medication. [SAC ¶ 39.]

On October 30, 2006, 35 days after the injury, Dr. Smith performed surgery on Plaintiff's fractured left fifth finger, inserting two steel surgical pins into the dislocated joint. [SAC ¶ 43 and 45.] In addition, Dr. Smith supervised another physician's reconstructive nasal septal surgery on September 20, 2007, ten months after the injury. [SAC ¶ 44.] Plaintiff alleges Dr. Smith deliberately delayed Plaintiff's surgeries, care and treatment. [SAC ¶ 45.] Because of the delay in performing surgery, Plaintiff's left fifth finger became deformed and unable to bend. [SAC ¶ 46.] Plaintiff alleges Dr. Smith failed to monitor his condition and treat his finger after the surgery, resulting in continued pain and suffering, and further resulting in Plaintiff's finger eventually being amputated on July 31, 2007. [SAC ¶ 47-48.]

Plaintiff alleges each of the Defendants were deliberately indifferent to his need for medical care in violation of his rights under the Eighth Amendment. [SAC ¶ 55(C).] Plaintiff also alleges Defendants' actions violated his substantive due process rights and right to equal protection under the Fourteenth Amendment. [SAC ¶ 55(A) and (B).]

Procedural History

Plaintiff, proceeding pro se, originally filed a complaint against Defendants on November 2, 2007, alleging the Defendants' actions violated his rights under the Eighth Amendment. [Case No. 07cv2101-IEG(LSP).] Defendants moved to dismiss the complaint based upon Plaintiff's failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). [Id., Doc. No. 21.] By the time of the hearing on Defendants' motion, however, Plaintiff was no longer in custody and thus no longer required by § 1997e(a) to exhaust his administrative remedies in order to bring an action against prison officials. Thus, the Court granted Defendants' motion to dismiss, and dismissed Plaintiff's action without prejudice to refiling. [Id., Doc. No. 23.]

Plaintiff re-filed his complaint on June 2, 2008. [Doc. No. 1.] Because Plaintiff's complaint was identical to the one he previously filed and served, counsel for Defendants agreed to accept service on behalf of Defendants.*fn1 [Doc. No. 4., p. 2.]

Defendants Smith, McCurty, Koludrovic, Marquez, Sheridan, and Escalante moved to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted. By order filed November 12, 2008, the Court granted in part and denied in part Defendants' motion. [Doc. No. 17.] The Court dismissed Plaintiff's claims against Defendants Smith, McCurty, Koludrovic and Marquez, with leave to amend; the Court denied the motion to dismiss Plaintiff's Eighth Amendment claims against Defendants Sheridan and Escalante.

Plaintiff filed a First Amended Complaint on January 15, 2009, realleging claims against Defendants Smith, Sheridan, McCurty, Escalante, Richards, and Marquez. Plaintiff did not reallege claims against Koludrovic. [Doc. No. 21.] Defendants moved to dismiss the First Amended Complaint. [Doc. No. 43.] Instead of responding to Defendants' motion, Plaintiff requested time to prepare and file a Second Amended Complaint. [Doc. No. 45.] On September 8, 2009, counsel entered an appearance in this case on Plaintiff's behalf.

On November 11, 2009, Plaintiff filed the SAC. [Doc. No. 54.] Although Defendants Koludrovic and Navamani are named in the caption of the SAC, no claims are asserted against these Defendants. Plaintiff once again alleges that Defendants Smith, Sheridan, McCurty, Escalante, Richards, and Marquez violated his rights under the Eighth Amendment. Plaintiff further alleges these Defendants' actions violated his right to liberty under the substantive components of the Due Process ...


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