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Jerald Randall v. T. Kimura

February 7, 2012

JERALD RANDALL, PLAINTIFF,
v.
T. KIMURA, 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. This action is proceeding on claims raised against two defendants in plaintiff's first amended complaint, filed June 8, 2010.*fn1 It is presently before the court on the motion of defendant Swingle for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff opposes the motion.

STANDARDS FOR A MOTION TO DISMISS

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).

In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

ANALYSIS

I. Allegations of the First Amended Complaint

Plaintiff's first amended complaint contains the following allegations against defendant Swingle:

In the middle of 2008 I complained to medical staff about my high blood pressure, asthma, and overall physical health being negatively affected by a lack of exercise. I was consistantly [sic] denied by right to exercise by High Desert State Prison employees. I asked Nurse Practitioner Wrigley to prescribe me exercise to help combat my health problems. Wrigley admitted that lack of exercise could contribute and make my existing health problems worse. She also admitted that exercise would improve my health but Wrigley refused to prescribe exercise because it would go against illegal lockdown policies put in place by High Desert State Prison. The lockdown was abusive in nature and Wrigley is obligated to report abuse. Instead, Wrigley sided with prison officials and neglected the plaintiffs [sic] medical needs and rights established by the federal courts. It will be proven fact that lack of exercise in patients with high blood pressure and asthma can increase the possibilities of a stroke or asthma attack.

I was then taken to the prison clinic to have my heart rate evaluated. Medical personel [sic] informed the plaintiff that my heart rate measured "30" and that was "highly unusual and abnormal." The results clearly indicated that something was wrong. Still I was never scene [sic] by a specialist or given another test. This clearly put my life at risk.

On 6-22-08 I complained about a tingling sensation in my foot and abnormal growth of my toenails. My toe nails had and still have deep ridges and lumps. Medical personel [sic] informed me that they didn't know what caused it. Yet and still I was never scene by a specialist and the problem has spread to my other foot. Clearly the medical department failed to react and my health has continued to deteriorate as a result.

On 7-10-08 I was jogging on the recreation yard after being denied outdoor exercise for over 90 days. My legs started to itch, sting, and tingle. The next day my legs were extremly [sic] sore I also was short of breath and had a headache as a result of being denied exercise. I was called to the clinic as a result. Medical once again claim that they "didn't know" what was causing the pain, itching, stinging, headache, or shortness of breath nor did medical order further test to determine the cause. This was done to protect the abusers (prison staff) from having the physical results of abuse revealed.

Defendant[] . . . D. Swingle [was] . . . made aware of my medical problems through the use of the medical grievance process and . . . could have and should have ordered the medical department to do what the medical rules and the federal courts require them to do. Instead all of the defendants failed to act and the plaintiff continues to suffer as a result of their failure to act.

First Amended Complaint, filed June 8, 2010, at 3-5. A copy of a grievance plaintiff filed concerning inadequate medical care and defendant Swingle's response to the grievance are attached as exhibits to the first ...


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