The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS(DOC. 16, 20) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS
Findings And Recommendations
Plaintiff Perry C. Butler ("Plaintiff") is a former prisoner of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 5, 2011. Plaintiff filed a First Amended Complaint on May 24, 2011. On November 7, 2011, the Court screened Plaintiff's First Amended Complaint and found that it stated cognizable claims against Defendants Dr. O. Onyeje and ENT Doe for violation of the Eighth Amendment, but did not state any other claims. Plaintiff was provided the opportunity to either file a second amended complaint or notify the Court of his willingness to proceed only on th claims found to be cognizable. On November 30, 2011, Plaintiff notified the Court of his willingness to proceed only on the cognizable claims. The Court issues the following Findings and Recommendations.
Plaintiff was released on parole on March 2, 2011. Prior to his release, he was incarcerated at Corcoran State Prison in Corcoran, California. Although Plaintiff is no longer in custody, his allegations concern the conditions of his confinement and therefore this action is treated as a prisoner civil rights action.
"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.
Until his parole in March 2011, Plaintiff was incarcerated at Corcoran State Prison in Corcoran, California, where the events giving rise to this action occurred. As Defendants, Plaintiff names Dr. O. Onyeje, Physician's Assistant T. Byers, LVN Le May, Ear, Nose and Throat specialist ("ENT") Jon Doe, Insurance Carrier Jon Doe and "Doe Defendant LVN."
Plaintiff alleges that on September 1, 2009, he submitted a Health Care Services Request form to see an ENT for pain in his throat and ears and severe headaches. He was seen first by "Doe Defendant LVN," who determined that Plaintiff may have infections in his ears. Thereafter, he was seen by general practitioner Dr. Onyeje. Dr. Onyeje examined Plaintiff and determined that he had an infection is his ears. Dr. Onyeje told Plaintiff that it did not make any sense to waste the State's money sending him to an ENT because he could treat Plaintiff for the infection. Dr. Onyeje prescribed Plaintiff antibiotics.
From September 1, 2009, through August 29, 2010, Plaintiff continued to complain to Dr. Onyeje of his serious medical need to see an ENT because of his ongoing pain in his throat and ears and headaches.
From September 1, 2009, through July 2010, Dr. Onyeje examined Plaintiff and determined that he still had an infection in his ears. Dr. Onyeje continued to insist that it did not make any sense to waste the State's money sending him to an ENT because he could treat Plaintiff himself. Dr. Onyeje prescribed more antibiotics in combination with NeomycinPolymyxin and instructed Plaintiff to put two drops in each ear, three times per day.
After almost one year of having an ear infection and being denied examination by an ENT, and only after Plaintiff had suffered hearing loss, Dr. Onyeje scheduled an appointment with Defendant ENT Doe. On or about August 29, 2010, ENT Doe examined Plaintiff and informed him that the continued use of Neomycin-Polymyxin beyond ten consecutive days caused the injection to turn into a fungus and caused Plaintiff to lose his hearing. ENT Doe Specialist, instructed Dr. Onyeje to discontinue the drops and provide Plaintiff with pain medication and hearing aides. No treatment was provided for the fungus.
On September 5, 2010, Plaintiff submitted a request for hearing aides and a yellow vest. After it was confirmed that Plaintiff was hearing impaired, he was provided with hearing aides for each ear and a yellow vest to give staff notice of his hearing impairment.
Plaintiff alleges that Dr. Onyeje had Plaintiff continue using the Neomycin-Polymyxin drops, despite the fact that he knew, or should have known, that using the drops beyond ten consecutive days could cause hearing loss. Warning instructions exist that (1) indicate that prolonged use of the drops beyond ten days could result in hearing loss; and (2) instruct that if the ...