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Alex D. Ross v. A. David

February 10, 2011


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment (Doc. 27). Plaintiff also filed a motion for summary judgment (Doc. 33) and an opposition to defendants' motion (Doc. 34). Defendants filed a reply (Doc. 35) and opposition to plaintiff's motion (Doc. 36).


A. Plaintiff's Allegations

In his complaint, plaintiff alleges that following his transfer to High Desert State Prison (HDSP) in April 2007, he was denied and delayed proper medical care. He claims he sought treatment for pain in his right wrist, for which he was forced to file a Form 602 inmate grievance. He then was seen by defendant David*fn1 on August 1, 2007. However, defendant David acted unprofessionally and denied plaintiff a low bunk chrono after requiring plaintiff to show that he was unable to get up onto the top bunk. He alleges defendant Deward failed to report defendant David's un-professionalism or put a stop to it. He further claims that defendant David caused him to suffer continuing pain by failing to allow him a bottom bunk, and that this was malicious. He claims defendant Swingle agreed with defendant David's opinion, forcing plaintiff to suffer in pain. Defendants Swingle and Roche both allegedly failed to supervise or correct defendant's David's actions.

B. Undisputed Facts

According to plaintiff, and the exhibits he submitted as evidence, the following relevant events occurred. Plaintiff was transferred to HDSP on April 17, 2007. On June 4, 2007, plaintiff was seen by FNP Reid, who discontinued his low bunk chrono. (Pl. Stmt of Undisputed Facts, Doc. 34-2, at 5). FNP Reid examined plaintiff and noted that plaintiff was "ambulatory without guarding." (Pl. Table of Attach., Attach. F, Doc. 34-4 at 58). Plaintiff had full range of motion in his ankle without pain or limitations; but it was noted an MRI showed he has an old fracture and osteoarthritis. (Id.) FNP Reid stated: "There is no plan to continue the low bunk/low tier chrono." (Id.) On June 4, 2007, plaintiff also submitted his inmate grievance (Log # HDSP-C-07-02326). In the grievance he described his problem as follows:

I saw the Regular Dr. today and I needed to update my lower bunk chronal from Solano to HDSP. I've been receiving lower bunk chronal since 7-12-03. I have a bone problem that causes me to break bones very easily over the years. I've had 8 broken bones. 3 of these break's took place while I've been locked up on this K-number. I have bad arthritis and I have a metal plate in my l forearm my r. wrist and I had a metal plate taken out of my right ankle but there are metal pieces left in my ankle that should have been removed with the plate. The Dr stated today she will not renew my lower bunk chronal without a specialist in bone problem.

She stated the other Dr. only gave me the lower bunk chronal because there was more bunks available which means to be [sic] I'm being denied renewal of the chronal for what she believe to be shortage of bunks. I explained the difficulty I have with combined wrist and leg arthritis. She also knows my leg give's out on me from time to time. All documents and the long history of bone issue are in my medical file. If my leg give out jumping off the bunk and breaks she is the fault. (Compl., Doc. 1, at 18, 20, (spelling errors corrected)).

This grievance was partially granted at the informal level on June 25, 2007, in that plaintiff had been scheduled for another medical appointment to discuss this problem in less than a month. Unsatisfied with that response, plaintiff appealed to the first formal level. He was interviewed by A. David PA-C on August 1, 2007. During this interview, defendant David, accompanied by defendant Deward, accompanied plaintiff to his cell where he demonstrated how he accessed the top bunk by using a stool and hobby table.*fn2 (Pl. Stmt of Undisputed Facts, Doc. 34-2, at 7, 8). Plaintiff acknowledges that his interview with defendant David "was a result of the appeal, not as a result of a medical request for treatment." (Pl. Stmt of Undisputed Facts, Doc. 34-2, at 8). Following the interview by defendant David, defendant Swingle issued the first level decision, denying plaintiff's grievance. Dr. Swingle stated:

At this interview, Ms. David discussed your appeal requests with you. She states that after a careful evaluation of your medical history, physical examination, and MRI and x-ray results, and observing you in your cell climbing to your upper bunk, she determined that your wrists and ankles are without instability or pain. Ms. David ordered pain management medication for you. Your request for a lower bunk/lower tier chrono is not granted as it is not medically indicated at this time. (Compl., Doc. 1, at 23).

Again dissatisfied with this decision, plaintiff appealed to the second formal level. Defendant Roche issued the second level decision, again denying plaintiff's request for a lower bunk/lower tier chrono as not medically indicated. Dr. Roche stated:

The second level appeal response is essentially the same as at the first level. You have the right to discuss your treatment options with your primary care provider, but they will make all medical treatment decisions based on medical findings, although you may not agree with them. A review of your pharmacy profile shows you are currently getting Tylenol and Naproxen for pain management. Your request for a lower bunk/lower tier chrono was not granted as it was not recommended by your primary care provider. You have been treated by a care provider based on medical findings, not bed availability. (Compl., Doc. 1, at 28).

Plaintiff was similarly dissatisfied with the second level opinion, and appealed to the Director's Level. Plaintiff's grievance was again denied at the Director's Level. The inmate appeals chief stated there was no need for further relief at the DLR (Director's Level Review), noting that plaintiff's primary care physician determined a bottom bunk was not medically ...

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