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Thomas Hightower v. Arnold Schwarzenegger

June 29, 2011

THOMAS HIGHTOWER,
PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

(Doc. 151)

OBJECTIONS DUE IN THIRTY (30) DAYS

I. FINDINGS

A. Procedural History

Plaintiff, Thomas A. Hightower ("Plaintiff"), is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 29, 2004. (Doc. 1.) On February 24, 2006, the Court dismissed Plaintiff's Complaint, with leave to amend, for failure to comply with Federal Rule of Civil Procedure 8(a). (Doc. 13.) Plaintiff filed a First Amended Complaint on June 28, 2006. (Doc. 21.) On March 8, 2007, the Court dismissed Plaintiff's First Amended Complaint, for failure to state cognizable claims, with leave to amend. (Doc. 23.)

On August 13, 2007, Plaintiff filed his Second Amended Complaint. (Doc. 31.) On March 19, 2008, the Court issued Findings and Recommendations to dismiss non-cognizable claims and to allow service on cognizable claims, which were adopted on July 8, 2008. (Docs. 32, 38.) Defendant Figueroa filed a motion to dismiss under Federal Rules of Civil Procedure *fn1 12(b) and 12(b)(6), on which Findings and Recommendations to grant have issued and been adopted. (Docs. 69, 116, 121.) Other Defendants also filed motions to dismiss under Rules 12(b) and 12(b)(6). (Docs. 75, 97.) Upon reviewing those motions, it was determined that Plaintiff's Second Amended Complaint should be re-screened in light of the new pleading standards set forth by the Supreme Court's opinion in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009). See Moss v. U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009), ref . Iqbal; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Second Amended Complaint was found to be replete with both general conclusions -- which were insufficient to state cognizable claims in light of Iqbal -- and multiple, unrelated claims in violation of Rule 18. Since it was possible that Plaintiff could amend to state factual allegations, without conclusions and unrelated claims, to correct the deficiencies in his pleading, the Second Amended Complaint was dismissed with leave to amend. (Docs. 123 and 129.)

After requesting and receiving extensions of time, Plaintiff filed the Third Amended Complaint. (Doc. 141.) Upon recommendation subsequent to screening, it was ordered that this action proceed only on Plaintiff's claims against Defendants Dr. Klarich, Dr. Nyguen, Dr. Deering, Dr. Wu, and Capt. A. Santa Cruz under the Eight Amendment for deliberate indifference to his serious medical needs, and against Captain A. Santa Cruz for unconstitutional retaliation under the First Amendment. (Docs. 144, 148.) All other claims and remaining Defendants were dismissed with prejudice. (Id.)

Subsequently, Defendants Dr. Nyguen and Dr. Wu (hereinafter "Defendants") *fn2 filed a motion to dismiss under Rule 12(b). *fn3 (Doc. 151.) After requesting and receiving extensions, Plaintiff filed his opposition. *fn4 (Docs. 156 - 160.) Defendants requested and received an extension to file their reply. (Docs. 161, 162, 163.) The motion is deemed submitted. Local Rule 230(l).

B. Plaintiff's Claim Against Defendant Dr. Nyguen

Plaintiff alleges that he was under the care and treatment of Defendant Dr. Nyguen for slightly over a year (9/20/2002 - 11/22/2003), and that during that time, he presented with obvious indicators of end stage liver disease, respiratory distress, COPD w/emphysema, seizure disorder, spinal disease, and GI disease. (Doc. 141, 3AC, 14:8-15:20, 21:1-22:19.) *fn5 Plaintiff alleges that Dr. Nyguen: (1) knew of Plaintiff's high ammonia levels and mental confusion, yet intentionally disregarded the severity of Plaintiff's medical status and only prescribed over the counter antacids and routine blood work for GI conditions; (2) knew of Plaintiff's respiratory distress symptoms and yet failed to prescribe chest x-rays or breathing treatments which caused oxygen deprivation and blackouts; and (3) knew of Plaintiff's degenerative spinal and facet disease, arthritis, bone spurring and realized that Plaintiff presented in obvious acute distress from pain, yet only prescribed over the counter Ibuprofen for pain, knowing that this would leave Plaintiff in severe pain at all times. (Id. at ¶¶ 34-41.)

Plaintiff further alleges that in August of 2003, he was seen by Dr. Nyguen for renewal of all medications, including his anti-seizure medication Tegratol and interferon which Dr. Nyguen had allowed to expire. (Id. at ¶ 58.) Knowing that Plaintiff's life and health were at risk without these medications, Dr. Nyguen refused to see Plaintiff, did not renew his medications for several weeks, and did not see Plaintiff for a re-scheduled appointment until weeks after the appointment. (Id.) On September 15, 2003, Dr. Nyguen saw Plaintiff for being bedridden due to excessive illnesses secondary to his prescription of Rebetol. (Id . at ¶ 59.) Dr. Nyguen allegedly became hostile and refused to even open Plaintiff's medical file to review the results of recently taken lab tests, ordered Plaintiff to leave, and ended the appointment without rendering any medical care to Plaintiff. (Id.)

These allegations were found to state a cognizable claim for deliberate indifference to Plaintiff's serious medical needs against Dr. Nyguen. (Doc. 144, Screen F&R; Doc. 148, O Adopt.)

C. Plaintiff's Claim Against Defendant Dr. Wu

Plaintiff alleges that he was seen for medical care and treatment by Defendant Dr. Wu during a time frame of slightly over a year (9/20/2002 - 11/22/2003), and that throughout that time he presented with obvious indicators of end stage liver disease, respiratory distress, COPD w/emphysema, seizure disorder, spinal disease, and GI disease. (Doc. 141, 3AC, 17:16-19:24.) Plaintiff alleges that Dr. Wu knew of: (1) Plaintiff's high ammonia levels and mental confusion, yet intentionally disregarded the severity of Plaintiff's medical status and only prescribed medical cell feedings and over the counter antacids; (2) Plaintiff's respiratory distress symptoms and yet failed to prescribe a chest x-ray or breathing treatments thus causing oxygen deprivation, blackouts, organ damage, brain cell death, and distress for weeks similar to slow suffocation; and

(3) Plaintiff's degenerative spinal and facet disease, arthritis, bone spurring, history of two failed spine surgeries, and the fact that Plaintiff presented in obvious acute distress from pain, yet only prescribed over the counter Ibuprofen for pain, knowing that this would leave Plaintiff in severe pain at all times. (Id. at ¶¶ 48-52.) Plaintiff further alleges that on April 23, 2003, Dr. Wu saw Plaintiff, knew that he was in severe pain, acknowledged that hard steel bunks were aggravating his pain from bulging discs, spinal disease, and arthritis, yet denied Plaintiff an extra mattress and pillow for pain management. (Id. at ¶¶ 53-56.) Though he confirmed carpal tunnel syndrome and arthritis in both of Plaintiff's hands, Dr. Wu refused to issue wrist braces for pain, "nor medically unassigned status." (Id.) Finally, when Plaintiff requested that Dr. Wu check on appointments with specialists that were more than a year overdue, Dr. Wu pushed Plaintiff out of his office and told ...


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