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Justin Thomas Miller v. John Lamontagne; Richard O. Butcher; Jose E. Otero; and David G.

March 4, 2011

JUSTIN THOMAS MILLER,
PLAINTIFF,
v.
JOHN LAMONTAGNE; RICHARD O. BUTCHER; JOSE E. OTERO; AND DAVID G. SMITH, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the review of the Report and Recommendation (ECF No. 42) issued by United States Magistrate Judge Bernard G. Skomal, recommending that the Court grant the Motion to Dismiss filed by Defendant Richard O. Butcher with leave to amend (ECF No. 18) and deny without prejudice the Motion to Strike filed by Defendant Butcher (ECF No. 19).

BACKGROUND

On April 1, 2010, Plaintiff, a state prisoner proceeding pro se, initiated this action by filing a Complaint under the Civil Rights Act, 42 U.S.C. § 1983. (ECF No. 1). The Complaint alleges that, on July 2, 2009, Plaintiff suffered a hand injury while working as a "machine operator" at "a prison shoe factory located at Richard J. Donovan Correctional Facility in San Diego, California." Id. at 3. Plaintiff alleges claims against Defendants John LaMontagne, the "Superintendent in charge" of the factory, Defendants Butcher and Jose E. Otero, physicians at "Alvarado Hospital Medical Center," and Defendant David G. Smith, a physician at the Richard J. Donovan Correctional Facility. Id. at 3, 7. The Complaint alleges that Defendant Butcher violated the Eighth Amendment to the U.S. Constitution and California state law by acting "with deliberate indifference to the serious medical needs of Plaintiff." Id. at 7. Apart from the legal conclusions that Butcher violated the U.S. Constitution and California state law, the Complaint references Butcher in two paragraphs:

A Pre-Operation History and Physical was completed. Debridement and further care were planned by Defendants Butcher and Otero. (Exhibit E). Defendant Butcher informed Plaintiff Miller that he would be hospitalized for one week in order for an operation to be performed on the third finger of his left hand. ... Exhibits D through I support the fact that Defendants Butcher and Otero acted with deliberate indifference and negligence to the serious medical needs of Plaintiff Miller.

Id. at 7-8.

Exhibits E and F, attached to the Complaint, consist of two medical reports related to Plaintiff signed by Butcher and one report signed by Otero. The first report, signed by Butcher and dated July 2, 2009, states:

The patient is admitted to the floor. Will keep on IV antibiotics: Ancef. Will ask Jose Otero, MD, to evaluate status. The patient may need some debridement, further care. Will admit patient to the floor. Will continue his Ancef IV. Will ask Dr. Otero to evaluate and give medicines for pain control. Id. at 35. The second report, signed by Otero and dated July 3, 2009, states:

This patient was seen at the request of Dr. Butcher for evaluation of a crush injury to the left hand with comminuted compound fracture. ... Recommendations: Continued splinting until the swelling decreases. Antibiotics. Will evaluate the x-rays. He may need an open reduction.

Id. at 36, 38. The third report, signed by Butcher and dated July 6, 2009, states:

The patient was admitted to the floor and initially started on Ancef. The patient was seen by Dr. Otero, plastic surgeon, who reviewed x-rays and felt the patient did not need surgical intervention. The patient is stable at this time. We will plan on discharging him back to the facility. ...

The patient is okay for general population. He is wearing a splint. He needs to have his dressing changed daily. The patient is stable for discharge. He will be followed up on an outpatient basis.

Id. at 40-41.

On July 20, 2010, Butcher filed the Motion to Dismiss and the Motion to Strike. (ECF Nos. 18, 19). Butcher moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Butcher contends that the Complaint fails to adequately allege that Butcher acted under color of law for the purposes of a ยง 1983 claim, and the Complaint fails to adequately allege that Butcher was deliberately indifferent to Plaintiff's medical needs under federal law or committed medical negligence under state ...


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