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Kenneth Gene Montgomery v. Sgt. Brooks

April 19, 2012

KENNETH GENE MONTGOMERY, PLAINTIFF,
v.
SGT. BROOKS, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff was a state prisoner who now proceeds through counsel with a civil rights action pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff filed his original complaint on December 12, 2011, and paid the filing fee.

On February 8, 2012, this court found that plaintiff's original complaint stated a cognizable claim against both defendants and ordered the complaint served. A review of the docket reflects that defendants were served on February 24, 2012. See Doc. Nos. 13, 14.

In his original complaint, plaintiff alleged that defendants Brooks and Parker, two correctional officers at High Desert State Prison, violated plaintiff's Eighth Amendment rights when the officer-defendants used excessive force on plaintiff, and failed to provide him with adequate medical care. Defendants have moved to dismiss plaintiff's adequate medical care claim, alleging that his complaint, on its face, does not allege a sufficient causal connection between defendants' behavior and any deprivation of adequate medical care. See Doc. No. 12. The motion to dismiss is currently calendared for hearing before the undersigned on April 26, 2012. Id. Plaintiff has not filed an opposition to the motion, but has instead filed an amended complaint. See Doc. No. 15.

Having reviewed the record, the court has determined that oral argument would not be of material assistance in determining the pending motion. Therefore, the court will not entertain oral argument, and will determine the motion on the record, including the briefing in support of the motion to dismiss, and the amended complaint. See E.D. Cal. L.R. 230(g).

The Amended Complaint

A properly filed amended complaint supersedes the original complaint. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 321 (1992); see also Sechrest v. Ignacio, 549 F.3d 789, 804 (9th Cir.2008), cert. denied sub nom., McDaniel v. Sechrest, ------U.S. --------, 130 S.Ct. 243, 175 L.Ed.2d 241 (2009) (amendment of a complaint constitutes waiver of claims not carried over from previous versions of the complaint). Under Federal Rule of Civil Procedure 15, a plaintiff is entitled to amend his complaint once as a matter of right within 21 days of service of a defendant's Rule 12(b) motion. See Fed. R. Civ. P. 15(a)(1)(B). Under Federal Rule of Civil Procedure 6(d), three additional days are added to this deadline.

In this case, defendants filed their Rule 12(b) motion on March 14, 2012, making April 9, 2012 the deadline for plaintiff to file his amended pleading. Plaintiff filed his first amended complaint on April 6, 2012, and it is therefore timely filed under Federal Rule of Civil Procedure 15(a)(1)(B).

Summary of the Amended Complaint

Plaintiff alleges that, on March 16, 2010, he was transported from Shasta County Jail to High Desert State Prison in order to serve a two-year sentence for driving under the influence. See First Amended Complaint, Doc. No. 15, ¶ 26. Plaintiff alleges that, on January 24, 2006, the Social Security Administration found him to be totally disabled, and that he had a failed cervical spine surgery on September 9, 2006. Id. at 25. Plaintiff alleges that he had been taking pain medication since his failed surgery. Id.

Plaintiff alleges that his primary care physician had advised Shasta County Jail that plaintiff was under treatment for, and had been prescribed medication for, severe pain of the spine. Id. Plaintiff also alleges that, at all relevant times, he was wearing a soft cervical neck collar because of his disability. Id. at 29.

Plaintiff alleges that he had not been provided with his prescribed medication by jail or prison authorities. Id. at 28. He alleges that his prescribed medications were not administered to him from March 15, 2010 until July 13, 2010 because his medical records had not been transported with him. Id. at 52. Plaintiff arrived at HDSP on March 16, 2010, and was transferred to CSP-Solano on May 25, 2010. Id. at 26, 50. Plaintiff alleges that he wrote to the Veterans' Administration for release of his medical information on March 23, 2010, but that his records were not sent to Solano until July 13, 2010. Id. at 49, 51.

Plaintiff alleges that, after his arrival at HDSP, he was interviewed by defendant Brooks in Brooks' office. Id. at 33. When plaintiff moved to scratch his face, defendant Parker, who was apparently in Brooks' office, grabbed plaintiff by the cervical neck collar, picked plaintiff up off his chair in a choke hold around his collar, and slammed plaintiff into the cement cinder block wall next to his chair. Id. at 35-36. Defendant Parker then walked plaintiff back to the "dummy cell" still holding plaintiff in the choke hold. Id. at 37.

Plaintiff alleges that, as a result of defendant Parker's actions, the instrumentation from his spinal surgery was loosened, that he suffered spine damage and unbearable pain, and that, as a result of the increased pain, his blood pressure rose. Id. at 43. Plaintiff alleges that he sought medical treatment after the incident, and was treated by defendant Shaw. Id. at 47. According to plaintiff, the treatment he received was not appropriate and defendant Shaw did not provide plaintiff with the correct amount of ...


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