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Bernard Martinez v. Dr. L. A. Delio

August 30, 2012

BERNARD MARTINEZ,
PLAINTIFF,
v.
DR. L. A. DELIO, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS FINDING THAT PLAINTIFF STATES C O G N I Z A B L E C L A I M S A N D RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (ECF No. 15)

OBJECTIONS DUE WITHIN THIRTY DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On July 1, 2011, Plaintiff Bernard Martinez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On April 30, 2012, Plaintiff's Complaint was screened and dismissed, with leave to amend, for failure to state a cognizable claim. (ECF No. 12.) Plaintiff's First Amended Complaint (ECF No. 15) is now before the Court for screening.

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF FIRST AMENDED COMPLAINT

The First Amended Complaint names the following Kern Valley State Prison (KVSP) officials as Defendants in this action: (1) Dr. L.A. Delio; (2) Dr. M. Spaeth; (3) Dr. Cherry Lopez, Health Care Manager (HCM) and Chief Medical Officer (CMO); (4) S. Zamora; (5) Martha, HCM; (6) Sonia, HCM; (7) T. Nguyen, Licensed Vocational Nurse (LVN); and (8) Anthoney Hedgpeth, Warden.

Plaintiff alleges the following:

In June, 2007, a spider bit Plaintiff's rectum. Plaintiff submitted a medical request and was seen by Dr. Delio on June 18, 2007. Plaintiff told Delio that a spider bite was causing swelling and severe pain. "Delio disregarded what Plaintiff told him, and without examining the spider bite Defendant Delio told Plaintiff it was just an internal hemorhoid [sic]." (Compl. at 4.) Plaintiff was dismissed by Delio without treatment. "Defendant Delio[']s failure to provide Plaintiff with medical treatment, resulted in a spider bite becoming infected, and Plaintiff needing surgery." (Id.)

Plaintiff continuously complained to prison officials that his symptoms were worsening as the bite area began discharging blood and pus. On July 12, 2007, Plaintiff was seen by Dr. Spaeth, who examined the wound and determined that it was infected and required urgent surgery. (Id.) "Plaintiff told Defendant Spaeth that he was in serious pain and requested medical treatment. Defendant Spaeth acknowledged that Plaintiff needed urgent medical treatment, but still did not provide Plaintiff with any treatment." (Id. at 5.)

On July 12, 2007, Dr. Delio contacted Defendant Martha to schedule corrective surgery. Delio contacted Defendant Martha three more times, on August 10, 2007, September 24, 2007, and October 15, 2007, attempting to expedite the scheduling of Plaintiff's surgery. Spaeth also contacted Martha repeatedly for the same purpose. (Id. at 5, 6.) Martha was "continuously notified" by both doctors beginning July 12, 2007 through October 15, 2007. (Id.) On October 15, 2007, Martha stated that she would contact fellow HCM Sonia, who was supposed to schedule Plaintiff's corrective surgery. (Id. at 6.) Martha did contact Sonia, who failed to immediately schedule the necessary appointments. (Id.)

Defendant Lopez supervised Defendants Martha and Sonia and was ultimately responsible for securing Plaintiff appointments. Lopez knew Plaintiff's surgery was delayed in spite of serious medical need, yet failed to ensure that Plaintiff was scheduled for surgery in a timely manner. Plaintiff suffered severe pain during the delay. (Id. at 6, 7.)

Plaintiff underwent surgery on November 8, 2007. Sometime during the weekend following his surgery Plaintiff complained to "Defendant T. Nguyen that he was in serious pain and was bleeding real bad for two (2) days." (Id. at 5.) Nguyen told Plaintiff, "'I can[']t help you because it's the weekend and no doctors are on grounds untill [sic] Monday.'" (Id.) Plaintiff was sent back to his cell without treatment.

Defendant Hedgpeth was the Warden at KVSP during the events described above. He was responsible for supervising the Defendants and ensuring their compliance with ...


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