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Maximo Berreondo v. Jonathan Akanno

November 16, 2011

MAXIMO BERREONDO,
PLAINTIFF,
v.
JONATHAN AKANNO, ET AL.,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (DOCS. 10, 14, 15) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

I. BACKGROUND

Plaintiff Maximo Berreondo ("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. Plaintiff filed his complaint on March 14, 2011. Plantiff filed his first amended complaint on June 30, 2011. On October 4, 2011, the Court screened Plaintiff's first amended complaint and found that it stated a cognizable claim against Defendant Akanno for deliberate indifference in violation of the Eighth Amendment, and no other claims. Doc. 14. Plaintiff was provided the opportunity to file a second amended complaint curing the deficiencies identified, or to notify the Court of his willingness to proceed only on the cognizable claim. On October 18, 2011, Plaintiff notified the Court of his willingness to proceed only against Defendant Akanno. The Court thus issues the following Findings and Recommendations.

II. SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

III. SUMMARY OF COMPLAINT

Plaintiff, a paraplegic individual who is currently incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, brings this action for adverse conditions of confinement, deliberate indifference to serious medical needs, law library access, visiting privileges, court access and violations of the Americans with Disabilities Act. The events at issue occurred between November 2009 and the filing of the complaint.

In his complaint, Plaintiff alleges as follows: On October 30, 2009, Plaintiff was transferred from Corcoran State Prison's Acute Care Hospital to a wheelchair cell in the general population at KVSP. Within two days of his arrival, Plaintiff began to show signs of skin breakdown on his right hip. He immediately informed a nurse. On November 4, 2009, Plaintiff saw Defendant Dr. Akanno, who refused to look at the affected area. Plaintiff's condition began to worsen and he continued to file medical slips. Dr. Akanno would see Plaintiff, but refuse to examine him. Plaintiff developed three pressure sores, one on each hip and one on the tailbone area. His sores became infected.

On April 30, 2010, Plaintiff was examined by Dr. Sweffler from Sacramento and moved to KVSP's Correctional Treatment Center on May 1, 2010. Plaintiff's condition deteriorated and on June 12, 2010, he began to suffer from chills, high fevers and severe muscle and joint pain. On June 22, 2010, Plaintiff was admitted to Mercy Hospital for severe bone and wound infections. For the next three months, Plaintiff underwent surgeries to remove necrotic and infected tissue. On July 4, 2010, Plaintiff suffered from massive blood loss from his left hip. On September 23, 2010, Plaintiff was discharged from Mercy Hospital to the KVSP's Correctional Treatment Center to continue treatment of his pressure sores. On December 9, 2010, Plaintiff was readmitted to Mercy Hospital with chills, high fevers, rapid heart rate and muscle and joint pain. On February 17, 2011, Plaintiff was discharged from Mercy Hospital to KVSP's Correctional Treatment Center. He remains bedridden and connected to a wound VAC, which is treating his open and infected pressure sores.

Plaintiff contends that Dr. Akanno failed to provide him adequate medical care and was deliberately indifferent to his medical needs. Plaintiff also claims that he filed multiple complaints, which were deliberately ignored by Defendant Sherry Lopez, Chief Medical Officer at KVSP.

Plaintiff alleges that other denials contributed to his pressure sores and severe infections. Plaintiff alleges that while at KVSP, Dr. Akanno denied him a proper mattress and daily showers. Plaintiff further alleges that he was deprived of outside yard time due to prolonged lockdowns and could not perform range of motion exercises to prevent muscle atrophy. Plaintiff alleges that he either was denied showers or was exposed to dirty water in backed-up showers. He was unable to properly clean himself after unintended bowel movements or condom catheter leaks, which resulted in irritation and infection. On more than one occasion, he fell onto the dirty floor in the shower, exposing his wound to germs and bacteria. Plaintiff alleges that while at KVSP, he was exposed to extreme temperatures, dust in the ventilation system, arsenic in the water and poor nutrition.

Court and Law Library Access

Plaintiff alleges that he is currently being denied access to the law library, to persons learned in law and to the court.

Visiting Privileges

Plaintiff alleges that while hospitalized he was denied the right to communicate with his family through correspondence, phone calls and/or visits.

Plaintiff's Request for Relief

Plaintiff requests money damages and ...


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