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Charles T. Davis v. Clark J. Kelso

May 10, 2011

CHARLES T. DAVIS,
PLAINTIFF,
v.
CLARK J. KELSO, ET. AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING MOTIONS FOR PRELIMINARY INJUNCTION DEADLINE THIRTY DAYS (Docs. 10, 11, 12, 13)

I. Procedural History

Charles T. Davis ("Plaintiff') is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132 (Americans with Disabilities Act). This action was filed on July 1, 2010. (Doc. 1). On September 16, 2010, Plaintiff filed two motions for injunctive relief. (Docs. 10, 11). On November 9, 2010, and November 29, 2010, Plaintiff filed renewed motions for emergency injunctive relief. (Docs. 12, 13). Plaintiff is currently housed at Pleasant Valley State Prison (PVSP) and the events that give rise to the current requests for injunction occurred while a prisoner at PVSP. In his original complaint, Plaintiff brings six claims: 1) deliberate indifference regarding Valley Fever; 2) ongoing breech of settlement agreement; 3) fraudulent confiscation of single cell status; 4) need for reasonable accommodation to his satisfaction or comfort under the Americans with Disabilities Act; 5) unconstitutional regulations regarding limitations on the amount of personal property and how to dispose of personal property when it exceeds limitations; 6) state claims of breach of affirmative duty by disturbing the soil and increasing Valley Fever risk. (Doc. 1).

II. Summary of Motions for Preliminary Injunction

A. First Motion for Emergency Injunctive Relief Filed on September 16, 2010

According to Plaintiff, on August 20, 2010, Dr. Tahepour renewed Plaintiff's pain medication of morphine sulphate. (Doc. 10 at 1). The renewal of the medication was a result of his administrative appeal (# PVSP-27-10-13272), where he successfully argued that the warden could not arbitrarily suspend all inmate's morphine sulphate prescriptions simply because an inmate in a different yard died of a morphine sulphate overdose. (Doc. 10 at 1-2). Plaintiff states that he was originally prescribed "SR # 30" for the morning which is a slow release pain medication that lasts twelve hours and "IR # 15" in the afternoon which is fast acting and intended to last till the evening and an "SR # 15" slow release for the night. However, Dr. Tahepour incorrectly prescribed Plaintiff to "IR # 15" three times a day. (Doc. 10 at 2-3). Plaintiff states that although Dr. Tahepour renewed the pain prescription "she stated she didn't know what the other doctors would do." (Doc. 10 at 2). Plaintiff filed a complaint against Dr. Tahepour for refusing to renew the pain prescription for approximately thirty days. (Doc. 10 at 2-3).

After filing approximately five administrative appeals to correct an error in his pain prescription, Plaintiff saw Dr. J. Chokatos on September 14, 2010. (Doc. 10 at 3). After informing Dr. Chokatos of the error in the pain prescription, Dr. Chokatos ignored Plaintiff. (Doc. 10 at 3). After the medical examination, Dr. Chokatos informed Plaintiff that he was stopping Plaintiff's morphine. (Doc. 10 at 4). After Plaintiff inquired why, Dr. Chokatos responded that it was "too dangerous" and that his conclusion was based on medical findings. (Doc. 10 at 4). Plaintiff suggests that this conclusion contradicts the fact that Dr. Chokatos renewed the morphine sulfate prescription on June 21, 2010. (Doc. 10 at 4). Plaintiff asserts that on the same day, Dr. Chokatos "made an implied threat . . . of confiscating [Plaintiff's] wheelchair" and retaliated for Plaintiff filing a complaint against him. (Doc. 10 at 4). According to Plaintiff, Dr. Chokatos is currently seeking to re-classify Plaintiff's medical condition which will cause Plaintiff's medical aide to be confiscated. (Doc. 10 at 4).

Plaintiff seeks as injunctive remedy for the Court to maintain the status quo by preventing Plaintiff's morphine sulphate presciprion to expire without renewal and mandating that the Chief Medical Officer, Felix Igbinosa, Dr. Tahepour, Dr. Chokatos and Dr. Fortune be prevented from discontinuing Plaintiff's morphine. (Doc. 10 at 5).

B. Second Motion for Emergency Injunctive Relief Filed on September 16, 2010

Plaintiff requests that Court orders various PVSP officials to issue a medical "Chrono" for Plaintiff to have a single-cell status. (Doc. 11 at 2). Plaintiff also requests that the Court orders Chief Medical Officer Dr. Igbinosa to provide a medical chrono to ensure that Plaintiff obtains the following: 1) lotion; 2) baby powder; 3) two extra sets of sheets; 4) extra underwear; 5) extra towels;

6) one plastic mattress; 7) reinstatement of a medical chrono listing Plaintiff's medical condition as permanent; 8) that Plaintiff be taken to a rheumotologist; 9) that Plaintiff's wheelchair and crutches not be confiscated; 10) that Plaintiff be allowed to shower alone with the lights off when he needs to shower according to his satisfaction and comfort during the entire year; 11) to consider inmates' input as to whether the medication of Lyrica and morphine sulphate is at an adequate dosage; 12) to stop smashing Plaintiff's medication; 13) to ensure that "no sneaky retaliation be taken" against Plaintiff by transferring him to another prison to frustrate the possibility of a successful injunction. (Doc. 11 at 2).

Plaintiff asserts that he needs extra privacy when showering so that fellow inmates do not watch him as he is "irrigating" his colostomy bag. (Doc. 11 at 4). Moreover, Plaintiff should be allowed to shower with the lights off because he has "mishaps" in the shower, which the Court will presume means bladder or stool related accidents in the shower. (Doc. 11 at 4). Due to difficulty maintaining control of his bodily functions, Plaintiff states that he needs two pairs of underwear. (Doc. 11 at 4). Plaintiff asserts that he "should be accommodate to [his] comfort and . . . satisfaction, and not that of the prison officials." (Doc. 11 at 4).

Plaintiff asserts that he is unable to walk more than three to four steps without excruciating pain and needs a wheelchair and crutches to get around to the toilet of his cell. (Doc. 11 at 5). Plaintiff asserts that his condition of Valley Fever, diabetes and HCV is permanent. (Doc. 11 at 6). Plaintiff asserts that he needs lotion because Valley Fever dries the skin and causes rashes and fungus on the body. (Doc. 11 at 6). Plaintiff needs baby powder to combat the foul order of his cell as a result of the fecal discharges in his diapers. (Doc. 11 at 6).

C. Third Motion for Emergency Injunctive Relief Filed on November 9, 2010

Plaintiff's third motion for injunctive relief reiterates his request to prevent prison officials from confiscating his wheelchair and crutches. (Doc. 12 at 1). Plaintiff asserts that he is unable to walk significantly and cannot get to chow hall to eat, cannot walk to obtain his life-saving insulin since he is a diabetic and cannot get to the toilet without difficulty. (Doc. 12 at 1). Plaintiff asserts that prison officials have issued a ...


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