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Dixon v. Yates

April 13, 2010

ROBERT J. DIXON, PLAINTIFF,
v.
YATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS

(Doc. 9)

Order

I. Background

Plaintiff Robert J. Dixon ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On April 13, 2009, Plaintiff filed the complaint that initiated this action. On September 18, 2009, the Court dismissed the complaint with leave to amend within 30 days. On October 15, 2009, Plaintiff filed his first amended complaint ("FAC").

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).

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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.

II. Plaintiff's First Amended Complaint

Plaintiff is currently incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: CMO Dr. F. Igbinosa, medical doctors S. Duenas, J. Diep, S. Pido, and E. Brown, clinical psychologist Satterthwaite, RN M. Griffith, RN-LVN L. Mora, RN S. Buckley, LVN, L. Medina, and LVN N. Gonzales.

Plaintiff alleges the following. Plaintiff received a prostate biopsy at an outside clinic on August 1, 2008. (FAC 1.) On August 4, 2008, during a D-yard clinic visit with Plaintiff, doctor Paja called the outside clinic and learned that the biopsy results indicated Plaintiff had prostate cancer. (FAC 1.) The treatment for this cancer was not chemo or radiation, but a radical prostatectomy. (FAC 1.) Plaintiff received a copy of the biopsy results from urologist doctor Sable of the outside clinic, who set a time line of 90 days for the surgery. (FAC 2.) Plaintiff handed a copy of these results to Defendant Doctor John Diep at PVSP. (FAC 2.) It was understood that surgery was urgent. (FAC 2.) Defendant Diep read the results of the biopsy, placed a copy into Plaintiff's file, and faxed a copy to Defendant Doctor Pido. (FAC 2.) Surgery was set for September 10, 2009, with doctors Sable and Hennary, who were to perform the surgery and repair a hernia. (FAC 3.)

On August 15, 2008, Plaintiff was called to D-yard clinic, where Defendant Pido informed Plaintiff that he was being transferred out of PVSP because it was a valley fever area and chemo weakened the immune system. (FAC 3.) Plaintiff informed Defendant Pido that he was not going to receive chemo, but surgery. (FAC 3.) Defendant Pido informed Plaintiff that there was no request for urgent surgery in his file, and that the transfer order had already been sent to Defendant CMO Igbinosa to be signed. (FAC 3-4.) Defendant RN M. Griffith informed Defendant Pido that a transfer would prolong the date of surgery past the recommended time line. (FAC 4.) Defendant Pido stated again that the transfer was done. (FAC 4.)

Defendant Igbinosa signed the transfer order on August 15, 2008, with full knowledge of risk of prolonging the time before surgery. (FAC 4.) Plaintiff filed a 602 inmate appeal on September 10, 2008, to prevent the transfer. (FAC 4.) On September 25, 2008, Defendant Duenas read the 602 inmate appeal and cancelled the transfer, rewriting the request for urgent surgery. (FAC 5.)

On November 16, 2008, Plaintiff was called to D-yard clinic to sign prep order for surgery the next day. (FAC 5.) Defendant L. Medina asked Plaintiff if he had read and signed the prep work, which Plaintiff said he had. (FAC 5.) On November 17, 2008, Plaintiff learned that L. Medina had cancelled the transportation because L. Medina thought Plaintiff had not properly prepped for the surgery. (FAC 5.)

Plaintiff feared that he risked death, and sought help from Defendant Satterthwaite on November 19, 2008. (FAC 6.) Plaintiff was seen by doctor Paja on November 26, 2008, who informed Plaintiff of the new surgery date of December 24, 2008. (FAC 7.) Surgery was finally performed, but there was no hernia repair. (FAC 8.) Plaintiff was told that because of threat of lawsuit, medical staff at PVSP would not assist Plaintiff with cleaning or changing bandages. (FAC 8.) Plaintiff did not receive pain medications, and was having constipation and voiding issues. (FAC 8-9.) On February 17, 2009, there was a build-up of scar tissue. (FAC 9.) Defendant Diep insisted that a foley catheter be placed into Plaintiff. (FAC 9.) A call was made to doctor Sable. (FAC 9.) Clinic staff and Defendant Diep were told not to place a foley catheter into Plaintiff, but were instead to take Plaintiff to a hospital. (FAC 9.)

Plaintiff was sent to Fresno hospital for placement of a supra pubic catheter. On March 13, 2009, Plaintiff was sent to urologist to undergo a procedure to remove or open the scar tissue. (FAC 9.) A second request was sent to the clinic for Defendant Diep to not place a foley catheter. (FAC 9.) On March 20, 2009, more scar tissue built up, and Plaintiff was again sent to the D-yard clinic. (FAC 9.) Defendant Diep insisted that he place a foley catheter, which Plaintiff refused. (FAC 9.) Defendant Diep refused to send Plaintiff out. (FAC 9.) Plaintiff requested to see Defendant Duenas, chief surgeon and head of the clinic. (FAC 9-10.) Defendant Duenas had Plaintiff ...


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