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Alan Devon v. Diaz

April 29, 2011

ALAN DEVON,
PLAINTIFF,
v.
DIAZ, ET AL., ATKINS AND CARLSON,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

RECOMMENDING THAT THIS ACTION PROCEED ON THE FIFTH AMENDED COMPLAINT AGAINST DEFENDANTS ON PLAINTIFF'S EIGHTH AMENDMENT MEDICAL CLAIM, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 31.) OBJECTIONS, IF ANY, DUE IN 30 DAYS

I. BACKGROUND

Alan DeVon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 29, 2007. (Doc. 1.) On February 8, 2008, Plaintiff filed the First Amended Complaint. (Doc. 12.) On April 22, 2008, Plaintiff requested leave to amend the complaint, which was granted by the Court, and the Second Amended Complaint was filed on June 27, 2008. (Docs. 13, 15, 16.) On October 27, 2008, Plaintiff requested leave to amend the complaint, which was granted by the Court, and the Third Amended Complaint was filed on March 2, 2009. (Docs. 17, 22, 23.) The Court screened the Third Amended Complaint pursuant to 28 U.S.C. § 1915A and entered an order on December 9, 2009, dismissing the Third Amended Complaint for failure to state a claim, with leave to amend. (Doc. 24.) On December 23, 2009, Plaintiff filed the Fourth Amended Complaint. (Doc. 26.) On April 1, 2011, the Court dismissed the Fourth Amended Complaint for failure to state a claim, with one final opportunity to amend. (Doc. 30.) On April 25, 2011, Plaintiff filed the Fifth Amended Complaint, which is now before the Court for screening. (Doc. 31.)

II. 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).

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF FIFTH AMENDED COMPLAINT

Plaintiff is presently incarcerated at the California State Prison-Los Angeles in Lancaster, California. The events at issue allegedly occurred while Plaintiff was incarcerated at the California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. In the Fifth Amended Complaint, Plaintiff names defendants R. Diaz (Warden), Lieutenant ("Lt.") Atkins, J. Prudhomme (Warden), CCII A. Fouch, and Nurse Carlson. Plaintiff requests monetary damages.

Plaintiff alleges as follows. On September 10, 2008, at 6:15 a.m., Lieutenant T. Atkins came to Plaintiff's cell to weigh Plaintiff because Plaintiff had been refusing non-Kosher food trays during the past two months. Plaintiff was "man-down" in his cell lying on the floor with serious back pain and could not get up to weigh himself. Sgt. Jonas (not named as a defendant) and Lt. Atkins accompanied a nurse to check on Plaintiff. The nurse asked Jonas and Atkins whether Plaintiff appeared to be in serious distress. They decided not to call medical staff. Lt. Atkins and the nurse told Plaintiff they would weigh him when he decided to get up off the floor, and then they left. When the counting officer came by, Plaintiff pleaded for medical help.

Plaintiff had previously been evaluated by the primary care physician, who found an unusual bulge in Plaintiff's lower back, and Plaintiff was scheduled for a MRI test. However, the MRI test had not been done before Plaintiff was found on the floor.

Plaintiff remained stretched out on the floor for hours, unable to stand, eat, or take himself to the bathroom. At 2:00 p.m., the Second Watch staff left, leaving word that Plaintiff should not be taken to the emergency room. Lt. Atkins told medical staff and the Third Watch administration to leave Plaintiff on the floor and that eventually Plaintiff would get up by himself. Plaintiff was left unattended for several more hours. At 11:00 p.m., Plaintiff cried out to the First Watch staff, who contacted Sgt. Williams (not named as a defendant). C/O Alverado (not named as a defendant) told Plaintiff that Lt. Atkins and the medical staff had told them not to help Plaintiff. Sgt. Williams ordered Nurse Carlson to come and evaluate Plaintiff's condition.

Plaintiff told Nurse Carlson he had radiating pain shooting from his neck down his back to his left leg, but she (Carlson) did not notify the doctor who was on call. Nurse Carlson told the correctional staff not to assist in lifting Plaintiff from the cell floor, that Plaintiff would have to crawl to the ambulance. Plaintiff was ordered to crawl or he would not be given treatment. When his cell door opened, Plaintiff held his breath and made every attempt to move himself over the threshold. C/O Alverado had the emergency ENTs come back to E-Facility, and Plaintiff was again told by Carlson to get up and crawl to them. Plaintiff attempted to crawl, without success. Sgt. Williams told Carlson he felt that Plaintiff was in genuine distress, and that staff was available to carry Plaintiff on the gurney, but Carlson refused to allow it. Plaintiff was left on the cell floor until he complained of chest pain to get medical attention. Sgt. Williams had C/O Alverado and another staff member pick Plaintiff up in a cradle ...


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