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KEVIN POPPEN v. LIONEL FOSTER

November 30, 2010

KEVIN POPPEN, PLAINTIFF,
v.
LIONEL FOSTER, M.D., ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff claims that his rights under the Eighth Amendment were violated by deliberate indifference to his serious medical needs. This action is proceeding against six defendants named in plaintiff's original complaint, filed March 10, 2010.*fn1 This matter is before the court on the motion of defendant T. Kimura-Yip to dismiss pursuant to Fed.

R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.*fn2

STANDARDS FOR A MOTION TO DISMISS

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

ALLEGATIONS OF PLAINTIFF'S COMPLAINT

Plaintiff's complaints contains the following allegations relevant to the instant motion.*fn3

Plaintiff is a thirty year old man in the custody of the California Department of Corrections and Rehabilitation (CDCR). At all times relevant to this action he was housed at Mule Creek State Prison (Mule Creek). On May 3, 2008, plaintiff submitted a CDC form 7362 medical request, stating that he had a painful enlarged right testicle and asking that his request be given priority. On May 6, 2008, plaintiff was examined by an R.N., who "found 'R testicular swelling -- R/O mass -- Needs M.D. assessment today.'" Complaint, filed March 10, 2010, at 5. Instead of a doctor, plaintiff was seen by a physician's assistant, who noted that plaintiff was complaining of testicular pain and problems urinating. The physician's assistant prescribed 800 mg motrin twice a day. Plaintiff asked for stronger medication but was told that the physician's assistant was not licensed to prescribe stronger pain medication.

On May 16, 2008, plaintiff saw defendant Soltanian-Zadeh, a D.O. Plaintiff requested examination by a specialist and stronger pain medication. Dr. Soltanian-Zadeh refused the request. On May 21, 2008, another physician submitted a physician's request for diagnostic procedures for plaintiff, for a principle diagnosis of orchitis and notes that plaintiff's right testicle was "[p]ainful, hard, hypuremic/hyperthermic." Id. at 6.

By June 11, 2008, plaintiff still had not had the additional testing. He submitted another medical request, noting that the problem was getting worse and requesting expedited treatment. Plaintiff was seen by a nurse who noted that he was in "acute distress." Id. On June 20, 2008, plaintiff was treated as a medical emergency by security staff and taken in a wheelchair to the clinic, where the nurse noted that plaintiff's pain and swelling was "worse with no relief from motrin." Id. at 7. The nurse telephoned defendant Soltanian-Zadeh, who, without seeing plaintiff, diagnosed no change from the last exam, recommended the addition of Tylenol, and said he would see plaintiff in approximately two weeks.

Seventeen days later, plaintiff still had not been seen. On July 17, 2008, plaintiff submitted another medical request. On July 22, 2008, plaintiff was taken to the San Joaquin General Hospital for an ultrasound. The findings were that plaintiff's right testicle "'is predominantly solid with multiple solid cystic structures scattered throughout the mass. This most likely represents testicular neoplasm.'" Id. On July 29, 2008, plaintiff submitted an inmate appeal complaining that it had been nearly three months since he first reported the testicular swelling, that it could be cancer, and that he did not know what was going on. He requested "'adequate medical treatment for this urgent problem.'" Id. at 8. About a month later, plaintiff received a response that he was scheduled for a follow up in the first week of September.

Plaintiff resubmitted his appeal on August 25, 2008, again requesting treatment. On August 24, 2008, plaintiff was taken to the central clinic, where a nurse telephoned defendant Soltanian-Zadeh and reported that plaintiff was in pain from the swollen right testicle. Dr. Soltanian-Zadeh prescribed naproxen and told them to set plaintiff up to return the next day. Defendant Soltanian-Zadeh also informed defendant Heatley that plaintiff's ultrasound results had come in and required "'[u]rgent CT and urology" as well as other tests. On August 26, 2008, defendant Soltanian-Zadeh submitted a request for an "urgent" urology consultation. On August 29, 2008, defendant Heatley approved the request for a consultation on October 16, 2008.

Plaintiff was not informed of this appointment. On September 9, 2008, he submitted another inmate appeal, asking to know if and when an appointment had been scheduled. On September 11, 2008, defendant McLean returned the appeal plaintiff had filed in August, stating that it was being returned because of "'No Adverse Affect.'" Id. at 9. Plaintiff resubmitted the appeal on the same day. On the same day, a CT found that plaintiff had a right testicular neoplasm. On October 16, 2008, the San Joaquin General Hospital Urology Clinic recommended surgery. On October 23, 2008, plaintiff underwent a right radical orchiectomy with placement of a prosthesis. He was returned to prison the same day.

On October 24, 2008, plaintiff reported that he was in a lot of pain and that vicodin was not helping. Defendant Soltanian-Zadeh ordered the vicodin continued. Plaintiff's bandages were not properly changed post-operatively. On October 28, 2008, plaintiff again requested better pain medication from defendant Soltanian-Zadeh, as well as "a lay-in and cell feed." Defendant Soltanian-Zadeh refused all of these requests. On November 5, 2008, plaintiff was seen at San Joaquin General Hospital, diagnosed with a right scrotal hematoma, referred to oncology, and prescribed vicodin and keflex, an antibiotic. Between November 6 and 17, 2008,

plaintiff repeatedly requested the antibiotics and bandage changes from nurses at Mule Creek. They refused. On November 22, 2008, he wrote another medical request staying that the hole in his scrotum appeared to be getting bigger and he was in a lot of pain. On November 30, 2008, plaintiff went to the clinic because the hole in his scrotum was growing and he was in a lot of pain. At around 10:00 p.m. that night, the prosthetic fell out. A few days later, plaintiff asked ...


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