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Duane Dixon v. Department of Correction and Rehabilitation

March 2, 2011

DUANE DIXON,
PLAINTIFF,
v.
DEPARTMENT OF CORRECTION AND REHABILITATION, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL WITHOUT LEAVE TO AMEND (Doc. 8)

Plaintiff Duane Dixon ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil rights action. On July 8, 2010, Plaintiff filed his initial complaint. (Doc. 1). On August 5, 2010, Plaintiff filed a first amended complaint. (Doc. 8.) Plaintiff's first amended complaint is presently before the court for screening.

A. Screening Requirement

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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

B. Summary of Plaintiff's Amended Complaint

Plaintiff is currently a state prisoner at R.J. Donovan Prison in San Diego, California. The acts he complains of occurred while he was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California. Plaintiff names the following defendants: J. Akanno, M.D., medical doctor at KVSP; M. Spaeth, M.D., medical doctor at KVSP; R. Rodriguez, M.D., medical doctor at Mercy Hospital in Bakersfield, California; the California Department of Corrections and Rehabilitation ("CDCR"); and Does 1 through 4, prison medical care providers. Plaintiff alleges the following: On April 6, 2007, Plaintiff was attacked by another prisoner and stabbed in the head. The object with which Plaintiff was stabbed broke off in his skull. Plaintiff was examined by Dr. Akanno on the date of the incident. On June 4, 2007, Plaintiff went to the medical staff at KVSP complaining of bleeding and dizziness. (Doc. 8, p. 3I and Exhibit D.). Approximately two months after the assault, on June 12, 2007, Dr. Akanno again examined Plaintiff and noted that the injury was healing poorly. On July 31, 2007, Dr. Akanno noted that Plaintiff was afflicted with an "old scalp wound due to assault" and that Plaintiff was "awaiting orthopedic surgery and scalp surgery." Plaintiff contends that Dr. Akanno "did not perceive Plaintiff's injury" and was "nonchalant." (Doc. 8, p. 3D and Exhibits D and I.)

Approximately three months after the head injury, Plaintiff wrote to the warden about the incessant pains in his head. On October 15, 2007, the associate warden advised Plaintiff to use the appeal process. (Doc. 8, p. 3B and Exhibit B.)

On August 13, 2007, Plaintiff was transported to Mercy Hospital in Bakersfield, California and examined by Dr. Rodriguez. His examination "was of the most cursory sort" and Dr. Rodriguez "neither wanted to touch Plaintiff nor be in the same room with him." Plaintiff explained to Dr. Rodriguez that he believed there was something in the wound. Plaintiff felt that Dr. Rodriguez was suspicious that Plaintiff might be irritating the injury. (Doc. 8, pp. 3B, 3G-H and Exhibit C.)

On November 21, 2007, Dr. Spaeth excised skin from the wound area. Plaintiff contends that Dr. Spaeth should have discovered the foreign body lodged in his head. On January 2, 2008, Dr. Spaeth examined Plaintiff and noted that his scalp lesion was still draining. Plaintiff alleges that Dr. Spaeth should have noticed that the wound was not healing. (Doc. 8, p. 3E.)

Plaintiff asserts that he repeatedly appealed to medical personnel regarding the pains in his head and continuous bleeding. On numerous occasions, medical personnel documented that the wound was not healing and Plaintiff was routinely given gauze and instructed to apply pressure. (Doc. 8, pp. 3A-3B and Exhibit g.)

At some point, Plaintiff was transferred to Corcoran State Prison ("CSP-Corcoran"). Following his transfer, Plaintiff's wound was examined at CSP-Corcoran in May 2008. On July 3, 2008, a foreign body was excised from his skull. (Doc. 8, p. 3C.)

On July 31, 2008, Plaintiff filed an inmate appeal ("602") form while at CSP-Corcoran. The appeal was denied at the Director's Level on February 11, 2010. (Attachments to Doc. 8.)

Plaintiff claims that he needlessly endured pain and suffering. Plaintiff seeks financial damages to ...


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