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Steven Williams v. Dial


August 8, 2011


The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. He alleges that defendants denied or delayed giving him adequate medical treatment in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment. This order addresses four of plaintiff's pending motions: Doc. Nos. 105, 107, 108, and 112. Defendants have not filed responses to any of these motions; however, all but one maybe resolved without their input.

I. Review of Procedural History

On March 7, 2011, plaintiff filed a motion for review of procedural history (Doc. No. 105) in which he requests that the court vacate a December 10, 2010 district court order (Doc. No. 96) adopting the previously-assigned magistrate judge's recommendation that defendants James, Roche, and Cox be dismissed from this action (Doc. No. 85). Plaintiff argues that dismissal of these defendants is erroneous in light of the fact that, earlier, the district court adopted findings and recommendations denying a prior motion to dismiss brought by these same defendants. (See Doc Nos. 54, 57.) There is no error, however, as defendants' second, successful motion to dismiss was brought on different grounds than their earlier, unsuccessful motion to dismiss. (Compare Doc. No. 54 at 3-5, 7 (finding that the Second Amended Complaint stated an Eighth Amendment claim against defendants James, Roche, and Cox) with Doc. 85 at 9 (finding that plaintiff failed to exhaust administrative remedies as to these defendants). Thus plaintiff's March 7, 2011 motion will be denied.*fn1

II. Service of Process

On April 8, 2011, plaintiff filed a motion for service of process (Doc. No. 107), pointing out that defendant Dial has not been served. On September 24, 2010, pursuant to a September 1, 2010 court order (Doc. No. 85), defendants filed a status report on their attempts to ascertain the whereabouts of defendant Dial. (Doc. No. 91.) In it, defendants requested "the Court to issue an order directing the USM to serve process on Dr. Dial, and for the clerk to send instructions for service, summons and copies of the relevant complaint to the USM. Because the last known address of Dr. Dial is believed to be a residence, defense counsel will provide the address directly to the USM, and not in this pleading." (Id. at 2.) As this service order has yet to issue, the court will file it concurrently with the instant order. To this extent, plaintiff's April 8, 2011 motion will be granted.

III. Protective Order

On April 15, 2011, plaintiff filed a "motion for protective order" (Doc. No. 108) in which he alleges various prejudicial errors on the part of the court. Having reviewed the docket, the court concludes that plaintiff's arguments lack merit.*fn2 Plaintiff also requests that the court order medical relief, as he "has been denied therapy, for his chronic back pain, [and] denied measures that would help with his pain management." (Id. at 3.) In support, plaintiff has attached a July 7, 2010 medical report documenting an MRI of the cervical spine and indicating that plaintiff has "[m]ild degenerative disc disease . . . in the mid cervical spine" and "multilevel mild facet and uncovertebral hypertrophy." (Id. at 22.)

On December 11, 2009, the court denied a similar "motion for protective order" alleging that plaintiff was "in imminent danger" of not receiving medication for back pain. (Doc. No. 67 at 1; Doc. No. 74.) The magistrate judge previously assigned to this case based her recommendation that the motion be denied on "the sworn statement of J. Burgett, a nurse practitioner at High Desert State Prison where plaintiff is housed," indicating that plaintiff was given neurontin for back pain until his prescription expired in September 2009; that plaintiff was subsequently prescribed Tylenol for his complaints of lower back pain; and that physical therapy was ordered for him. (Doc. No. 67; see Doc. No. 66-1.) The magistrate judge noted that plaintiff did not file an objection to Burgett's statements.*fn3 (Doc. No. 67 at 2.)

In his 2009 motion, plaintiff sought prospective relief, alleging that "in some point in the near future pain medication would be unnecessarily discontinued." (Doc. No. 67 at 1.) Here, in contrast, plaintiff alleges that he "has been denied therapy" and other pain management measures. (Doc. No. 108 at 3.) The court understands plaintiff to allege that, at some point after November 2009, when Burgett filed her statement, the medical treatment he received for chronic back pain became inadequate. (See Doc. 66-1.) Before ruling on plaintiff's motion, the court will, as before, order defendants to respond to plaintiff's allegations concerning his prior and ongoing treatment for back pain. (See Doc. 65 at 3.) Accordingly, these claims will be held in abeyance pending defendants' response.

IV. Partial Summary Judgment

On June 17, 2011, plaintiff filed a "motion for partial summary judgment" complaining for a second time that defendant Dial has not been served. (Doc. No. 112.) Plaintiff expresses concern that Dial "may never be found" (id. at 2); however, defendants' September 24, 2010 status report suggests that defense counsel has a residential address for Dr. Dial, where he may or may not currently reside. (Doc. No. 91 at 2.) As discussed above, the court will file a concurrent order directing the USM to serve process on Dr. Dial. Therefore, the instant motion will be denied as moot.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's March 7, 2011 motion for review of procedural history (Doc. No. 105) is denied;

2. Plaintiff's April 8, 2011 motion for service of process (Doc. No. 107) is granted insofar as service will be ordered concurrently on defendant Dial;

3. Plaintiff's April 15, 2011 motion for protective order (Doc. No. 108) is denied except as to plaintiff's allegations of inadequate treatment for lower back pain, which are held in abeyance;

4. Defendants shall file a response to plaintiff's allegations in Doc. No. 108 that he received and continues to receive inadequate treatment for lower back pain, within fourteen days of this order; and

5. Plaintiff's June 17, 2011 motion for partial summary judgment (Doc. No. 112.) is denied as moot.

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