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Anthony King v. Susan Hubbard

July 29, 2011

ANTHONY KING,
PLAINTIFF,
v.
SUSAN HUBBARD, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED (DOC. 30) OBJECTIONS, IF ANY, DUE WITHIN EIGHTEEN DAYS

Findings And Recommendations

I. Background

Plaintiff Anthony King ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, field July 13, 2009, against Defendants Beregovskaya and Enemoh for violation of the Eighth Amendment. Pending before the Court is Defendants' motion to dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff's failure to exhaust available administrative remedies, filed February 25, 2011. Defs.' Mot. Dismiss, Doc. 30. On April 14, 2011, Plaintiff filed his opposition. Pl.'s Opp'n, Doc. 35.*fn1 On April 21, 2011, Defendants filed their reply. Defs.'

Reply, Doc. 36. The matter is submitted pursuant to Local Rule 230(l).

II. Summary Of Amended Complaint

Plaintiff filed his first amended complaint on January 6, 2009. Plaintiff alleges the following. On June 26, 2007, Plaintiff arrived at North Kern State Prison. Plaintiff was ordered to relinquish his orthopedic shoes. Plaintiff was informed that his shoes would be held for thirty days to allow Plaintiff to produce a medical chrono for their possession.

On November 13, 2007, Plaintiff was transferred from NKSP to California Substance Abuse Treatment Facility ("CSATF"). Plaintiff was not in possession of any orthopedic shoes. On December 13, 2007, Plaintiff was issued a walker to assist with his mobility needs. On December 18, 2007, Plaintiff was seen by Defendant Dr. Beregovskaya. Defendant Beregovskaya made a medical decision regarding Plaintiff's disability status, which resulted in the confiscation of the walker. Defendant Beregovskaya referred Plaintiff to the orthopaedic specialist at CSATF.

On January 24, 2008, Defendant Enenmoh reviewed Defendant Beregovskaya's actions as part of an inmate grievance filed by Plaintiff, and approved the confiscation of the walker. On February 19, 2008, MRIs of Plaintiff's spine were taken. On February 27, 2008, Plaintiff was seen by Dr. Pineda for a neuro-consult. Dr. Pineda recommended that Plaintiff's medication be increased and that Plaintiff be provided with a walker.

On March 19, 2008, Plaintiff was fitted for orthopaedic boots at CSATF. On April 15, 2008, Plaintiff was seen by Defendant Dr. Beregovskaya, who did not follow Dr. Pineda's February 27, 2008 recommendations. Dr. Beregovskaya did not offer an alternative course of treatment.

On April 30, 2008, Plaintiff received his orthopedic shoes. Due to problems with the shoes they were returned for correction. On May 19, 2008, Plaintiff was seen by a Pain Management Specialist, who recommended, inter alia, a LESI*fn2 procedure. On May 22, 2008, Plaintiff was again seen by Defendant Dr. Beregovskaya, who referred Plaintiff back to Orthotics, and submitted a recommendation for the LESI procedure for approval by Defendant Chief Medical Officer Enenmoh. Defendant Beregovskaya again refused to issue Plaintiff a walker or to renew Plaintiff's prescription for Baclofen. On July 10, 2008, Plaintiff was informed by Defendant Beregovskaya that the LESI procedure was disapproved by the Division of Corrections Health Care Services.

On August 19, 2008, Plaintiff received his follow-up on the neuro-consult. Dr. Rahimifar ordered a walking cane, C-spine collar and a prescription for Flexeril. Plaintiff also required a further follow-up appointment. Defendant Beregovskaya did not follow the specialist recommendations. However, on November 10, 2008, Plaintiff was prescribed Flexeril.

On November 18, 2008, Plaintiff was again seen by Dr. Rahimifar, who ordered a prescription of steroids to reduce the swelling in Plaintiff's spinal cord, and ordered a C-spine collar for Plaintiff. Two days later, Plaintiff was seen by Defendant Beregovskaya, who did not prescribe the steroid medication because there was no documentation in Plaintiff's file stating that the medication had been ordered. Defendants Enenmoh and Beregovskaya refused to follow Dr. Rahimifar's prescription.

Plaintiff contends a violation of the Eighth Amendment by Defendants Enenmoh and Beregovskaya for their failure to follow the specialist's ...


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