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Joseph G. Alcala v. Mike Martel

July 5, 2011

JOSEPH G. ALCALA, PLAINTIFF,
v.
MIKE MARTEL, WARDEN, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendants' motion to dismiss. Plaintiff opposes the motion. Also before the court is defendants' motion to modify the March 16, 2011 scheduling order.

ALLEGATIONS OF THE COMPLAINT

This action is proceeding on plaintiff's June 22, 2010 second amended complaint ("SAC"). In this court's October 27, 2010 screening order, the SAC was found to assert an Eighth Amendment claim for deliberate indifference to medical needs against defendants Dr. Naseer, Nurse Palomino and Correctional Officer Carillo.*fn1 At all times relevant to this action, plaintiff was housed at Mule Creek State Prison ("MCSP") in Ione, California.

Plaintiff alleges that on or about May 2008, he began to feel sick and nauseous, and later discovered an egg-sized lump on the left side of his abdomen. SAC at 7. Plaintiff immediately submitted a medical request form to see Dr. Naseer. Id. On May 19, 2008, plaintiff was seen by Dr. Naseer and Nurse Palomino, both of whom felt the lump on plaintiff's abdomen. Id. Plaintiff was placed on an unidentified waiting list and scheduled for a CAT scan. Id.

Following this visit and prior to the CAT scan, plaintiff felt a second lump on the right side of his abdomen and began to suffer from severe bloating, nausea, constipation, loss of appetite, loss of weight and extreme pain and discomfort. SAC at 7. Plaintiff submitted multiple medical request forms to see Dr. Naseer again, but was only able to see Nurse Palomino who, on June 12, 2008, gave plaintiff Tylenol for pain management. Id. at 7-8.

On June 13, 2008, plaintiff went "man-down" in his cell. SAC at 8. Plaintiff was immediately taken to the prison clinic where he was seen by Dr. Hawkins, who, upon examination, ordered plaintiff transferred to San Joaquin General Hospital for further medical care and treatment. Id. After receiving several x-rays and a CAT scan at San Joaquin General Hospital, plaintiff was returned to MCSP on June 15, 2008. Id. On June 17, 2008, plaintiff was summoned to the prison clinic and seen by Nurse Palomino, who placed plaintiff an another unidentified waiting list and scheduled him for a biopsy. Id. Nurse Palomino again gave plaintiff Tylenol for pain management. Id.

Despite repeated pleas for assistance with his array of symptoms and pain, plaintiff claims that medical staff, including Nurse Palomino, informed plaintiff that they could do nothing for him and suggested he fill out additional medical request forms. SAC at 9.

On June 30, 2008, plaintiff again went "man-down" in his cell and a "code one" medical emergency was called. SAC at 9. Carillo, the correctional officer on duty, arrived at plaintiff's cell and stated "Let me see, what's wrong with you?," "There's nothing wrong with you," "Come on," "Get up," and "I know you're only faking." Id. When medical staff arrived at plaintiff's cell, Carillo insisted there was nothing wrong with plaintiff. Id. Although the medical staff brought a stretcher to carry plaintiff from his cell, Carillo prevented them from doing so. Id. Thus, plaintiff was forced to walk to the prison clinic, where he sat for approximately 2-3 hours before being sent to the prison's main infirmary. Id.

At the infirmary, plaintiff was seen by a doctor who gave plaintiff two shots of morphine and made arrangements for plaintiff's immediate transfer to San Joaquin General Hospital. SAC at 8-9. Plaintiff remained in the hospital from June 30, 2008 to July 2, 2008. Id. at 10. While there and after a series of medical tests, plaintiff was informed that he had cancer. Id.

Upon his return to MCSP and due to a lack of available beds at the prison's infirmary, plaintiff was placed in Administrative Segregation from July 3, 2008 to July 11, 2008. SAC at 10-11. On July 11, 2008, plaintiff went "man-down" in his cell for a third time and was transported to the San Joaquin General Hospital. Id. at 11. Plaintiff remained in the hospital for approximately ten days where he was diagnosed with stage 4 lymphoma cancer. Id. Plaintiff was told that, without further emergency medical care, the cancer would have proven fatal. Id. Plaintiff received his first chemotherapy treatment on July 19, 2008 at the San Joaquin General Hospital. Id.

PROCEDURAL BACKGROUND

Plaintiff initiated this action on December 8, 2009 as a petition for writ of habeas corpus. See Doc. No. 1. Plaintiff's petition was comprised of two claims: the instant claim and a challenge to a disciplinary conviction and subsequent loss of good-time credits. Because the first claim concerned his conditions of confinement and the second claim concerned the fact or duration of his confinement, the court converted the petition to a civil rights action, and plaintiff was ordered to bring his challenge to the disciplinary conviction in a separate action pursuant to 28 U.S.C. § 2254. See Doc. No. 10; Related Case 2:10-cv-3448-JFM.

On February 28, 2011, defendants filed an answer. On March 16, 2011, a discovery and scheduling order issued. On April 13, 2011, defendants filed a motion to dismiss.

On April 25, 2011, plaintiff filed an opposition. On April 28, 2011, defendants filed a reply. On May 10, 2011, plaintiff filed a sur-reply.

On June 2, 2011, defendants filed a motion to modify the scheduling order. On June 17, 2011, plaintiff filed a statement ...


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