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Rush Spinks, Jr v. E. Lopez

March 8, 2012

RUSH SPINKS, JR.,
PLAINTIFF,
v.
E. LOPEZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON COGNIZABLE EIGHTH AMENDMENT CLAIM AGAINST DEFENDANT LOPEZ AND OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM (Doc. 1) THIRTY-DAY OBJECTION DEADLINE

Findings and Recommendations Following First Screening

I. Screening Requirement and Standard

Plaintiff Rush Spinks, Jr., a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 12, 2010. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 556 U.S. 662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Claims

A. Summary of Allegations*fn1

Plaintiff, who is currently incarcerated at Correctional Training Facility in Soledad, brings this action against E. Lopez, a licensed vocational nurse; T. Lau, supervising registered nurse; C. Schutt, acting health care manager; and two Doe defendants for violating his rights while he was incarcerated California State Prison-Corcoran. Plaintiff seeks damages and declaratory relief, and he alleges that his rights under the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, and numerous California Penal Code sections were violated.

On August 25, 2008, Plaintiff was transported to an outside hospital, where he underwent his third hemorrhoidectomy for a chronic, severe, prolapsing hemorrhoid condition. Plaintiff's postoperative care included pain medication, a stool softener, and a sitz bath basin. Upon Plaintiff's return to the prison on August 26, 2008, the prison hospital's ER nurse went over the instructions and assured him that adherence with the post-operative orders would not be a problem. Plaintiff subsequently went to the yard's medical clinic as directed, where he received a three-day lay-in and was told that the sitz bath basin had to be ordered.

Plaintiff received the sitz bath basin on August 27, 2008.

On September 1, 2008, Plaintiff went to the medical clinic to receive his noon dose of pain medication and while he was there, Defendant Lopez appeared at the clinic window and informed him he needed to return the sitz bath basin because the order authorizing its use had expired. Plaintiff told Defendant Lopez that she was mistaken and only the pain medication ordered by the surgeon had expired.

After Plaintiff returned to his cell, a correctional officer said Defendant Lopez had called and Plaintiff was supposed to return the sitz bath basin to the medical clinic. Plaintiff explained that Defendant Lopez was mistaken and showed the officer the medical order, which supported Plaintiff's position. The officer then left to call Defendant Lopez, but he returned to Plaintiff's cell and said Lopez was insistent and he would need to take the basin from Plaintiff if Plaintiff would not return it himself.

Plaintiff went back to the clinic with the basin, where he and Defendant Lopez argued over whether or not Plaintiff's order for the basin had expired. Plaintiff requested to keep the basin for another day until a doctor could straighten the matter out, due to pain and bleeding, but Defendant Lopez refused. Frustrated, Plaintiff impulsively threw the basin on the floor, where it bounced off the floor into the wall and then off the wall onto Defendant Lopez's foot. Plaintiff was handcuffed and escorted to the program office, and he was subsequently moved from general population to administrative segregation and issued a serious rules violation report (RVR) for battery on a non-peace officer with a weapon.

On September 3, 2008, Plaintiff filed an inmate appeal demanding his stool softener and to be provided with a sitz bath basin. On September 4, 2008, Plaintiff's medication and sitz bath treatment were reordered following review and clarification of the post-operative orders. On September 5, 2008, staff in administrative segregation allowed Plaintiff to retain the sitz bath basin in his cell to facilitate his post-operative treatment.

Plaintiff was subsequently found guilty of the disciplinary charge against him. However, the RVR was ordered reissued and reheard due to unspecified prison-regulation related due process violations. Despite this order, Plaintiff was brought before the institutional classification committee on November 13, 2008, where he was assessed a nine-month, mitigated Security Housing Unit (SHU) term. However, the SHU term was suspended, and he was ordered released back to ...


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