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Passer v. Steevers

August 6, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action was reassigned to the undersigned magistrate judge on February 9, 2010.*fn1

Plaintiff is proceeding on his amended complaint, filed January 7, 2009 (Dkt. No. 7), against defendants Manuel Sabin, M.D., and Gregory Burt, M.D., both physicians at California Medical Facility ("CMF") where plaintiff is currently incarcerated.*fn2 Presently pending before the court is defendants' motion to dismiss (Dkt. No. 16), which plaintiff opposed (Dkt. Nos. 20, 23, 30), and defendants filed a reply (Dkt. No. 21), and plaintiff's motion to further amend his complaint (Dkt. No. 22). For the reasons that follow, this court recommends that defendants' motion be denied in full and plaintiff's motion be granted in part.


The amended complaint (Dkt. No. 7) makes the following allegations. Supporting documents are attached to plaintiff's original complaint. (Dkt. No. 1, at 23-86.) Plaintiff alleges that in November 2005, while he was incarcerated at California State Prison-Lancaster ("CSPL"), he suffered a fall while participating in recreational therapy, injuring his left elbow. "No medical exam was provided nor a X-ray because the X-ray machine was broken, a sling was provided with instructions not to use my arm." (Amended Complaint ("AC"), Dkt. No. 7, at 9.) The next month, December 2005, plaintiff was transferred to CMF. "[U]pon being examined by the receiving Doctor [identified as Dr. Steevers] and given a X-ray [I] was told that because of the treatment I received at LAC [CSP-L] my elbow had healed bent and my arm could not straighten all the way." (Id. at 4.) Plaintiff alleges that as a result, and despite physical therapy, he continued to experience pain and instability in his elbow. (Id. at 4-5.)

Upon arriving at CMF, plaintiff asked for a lower bunk assignment due to his elbow injury. Plaintiff emphasizes that there is no ladder or other climbing device provided for upper bunks. Approximately January 25, 2005, plaintiff allegedly fell while getting out of his top bunk. He requested the assistance of "wing clinicians Werth and Durbin" to obtain a lower bunk, who brought that request to the Interdisciplinary Treatment Team ("IDT"), but plaintiff's request was denied. (Id. at 5.)

On March 8, 2006, plaintiff allegedly hurt his right knee while participating in recreational therapy. Plaintiff was seen by Dr. Steevers on March 27, 2006, who diagnosed a sprain and prescribed a knee brace for stabilization; however, plaintiff did not receive the knee brace for many months. Dr. Steevers allegedly denied plaintiff's request for a lower bunk. (Id. at 5.)

On June 2, 2006, plaintiff allegedly "fell while attempting to get into the top bunk when my right knee buckled because of the sprain and lack of knee brace. My left elbow also buckled when I tried to catch myself as I fell, because of it's injury it couldn't support my weight." (Id.) Plaintiff states, "I hit my head on the edge of the top bunk and cut my forehead, wrentched (sic) my neck & back, I landed very awkwardly, my legs sliding apart hurting my left hip and groin and worsening my knee which buckled inward." (Id.) Plaintiff was sent to Triage and examined by a nurse and doctor (identified as Nurse Sinclair and Dr. Mark Alchek in plaintiff's proposed Second Amended Complaint, Dkt. No. 22-1). While "the Dr. . . . did not examine me or order any X-rays or tests to check my injuries he did issue me a single crutch and temporary low bunk handwritten chrono," later prepared in typed form (Id.; Dkt. No. 1, at 26, 27, 30.)

Despite issuance of these "low-bunk chronos," plaintiff allegedly suffered three more falls before obtaining a lower bunk. On June 30, 2006, Dr. Steevers "finally agreed to issue a low bunk chrono and ordered it via his voice mail, I witnessed the call to the houseing (sic) sergeant." (AC at 6; Dkt. No. 1, at 37-38.) "On 7/03/06 I received my copy of the official low bunk chrono, ten days later [July 13, 2006] the houseing (sic) sergeant finally ordered my move to a low bunk. [This was] [m]ore than 7 months after I first requested it because of my elbow being damaged and 6 weeks after the triage Dr. ordered it." (AC at 6.)

Also on June 30, 2006, Dr. Steevers ordered an MRI of plaintiff's knee. (Dkt. No. 1, at 37, 38.) Plaintiff obtained the MRI on August 3, 2006, which disclosed a torn meniscus. (Id. at 40.) However, allegedly no treatment was offered. (Id. at 45 (Dr. Steevers wrote that "he's become much less symptomatic since lower bunk placement"); Dkt. No. 7, at 12.) Plaintiff complained of groin and hip problems on August 4, 2006. (Id. at 42.)

On November 6, 2006, plaintiff allegedly complained of ongoing neck pain ("constant headaches, neck pain, and grinding when I turn my head") to Dr. Steevers, who told plaintiff to just give it time. (AC at 12.) On November 22, 2006, plaintiff sought urgent care for severe neck pain. The unidentified urgent care doctor ordered a cervical X-ray and pain medication. (Dkt. No. 1, at 51). However, plaintiff did not receive the medication. (AC at 12.) About a week later, on November 30, 2006, plaintiff saw his new primary care physician, defendant Sabin, who allegedly rescinded plaintiff's prescriptions for pain and cold medications, questioning plaintiff's veracity and allegedly stating in part, "I really don't care about your pain." (Id. at 12; Dkt. No. 1, at 51, 54, 56.) On December 21, 2006, "Dr. Sabin relented and reinstated my pain medication grinning at me and saying, 'Well, maybe all the inmates don't lie and exaggerate.'" (AC at 6, 12.) Plaintiff received his pain medication approximately January 3, 2007. (Id. at 13; Dkt. No. 1, at 61.)

Meanwhile, on November 29, 2006, plaintiff obtained an X-ray of his neck which showed moderate degenerative changes at his C-5 and C-6 discs with bilateral neural foraminal narrowing; an MRI was recommended. (AC at 12; Dkt. No. 1 at 58.)

On January 30, 2007, plaintiff filed the underlying administrative grievance (CMF-M-07-00307) in this action, stating in full:

I an living with pain in my knee & neck. After continual & repeated requests I finally got a MRI on my knee showing a torn meniscus needing surgery -- still waiting for the surgery months later --finally was given an MRI on my neck which hurts constantly and causes headaches and nausea -- still waiting for results. Both of these injuries wouldn't even have oc[c]urred if I wasn't forced to stay in a upper bunk, without a ladder even after the triage doctor gave me handwritten chrono because of earlier falls and Ms. Wirth and myself asking about a lower bunk in IDT and being told no.

I want the surgery on my right knee ASAP -- and I want my neck problem addressed instead of being stalled off about it. It took a lot of time -- too much time -- to even get the tests done - meanwhile I am in pain and still don't know the extent of my injury.

(Opposition, Dkt. No. 20, Exh. A, at 1 (emphasis added); AC at 7.)

Informal Review of plaintiff's grievance was bypassed, and it was granted at the First Level without comment on February 21, 2007. (Dkt. No. 20, Exh. A, at 2.)

Approximately February 9, 2007, plaintiff obtained an orthopedic consultation and surgery for his knee. (AC at 13.)

On February 20, 2007, plaintiff was assigned a new primary care physician, defendant Burt, who ordered physical therapy for plaintiff's neck. (Id. at 7.) However, plaintiff states that "[w]hen I reported for physical therapy, my problem was damaged cervical ...

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