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Wayne L. Pickering v. Ken Clark

September 10, 2012

WAYNE L. PICKERING,
PLAINTIFF,
v.
KEN CLARK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS ECF No. 9 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

Findings and Recommendations

I. Background

Plaintiff Wayne L. Pickering ("Plaintiff') is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On June 9, 2011, Plaintiff initiated this action by filing his complaint. On January 11, 2012, the Court dismissed the complaint for failure to state a claim with leave to amend. On February 1, 2012, Plaintiff filed his first amended complaint. ECF No. 9. The amended complaint is before the Court for screening.

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 or malicious," that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 3

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 5 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, 9 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (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 to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of First Amended Complaint

Plaintiff was incarcerated at California Substance Treatment Facility ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: A. Rotman, physician; Ken Clark, warden; A. Enenmoh, chief medical officer; John Doe 1, attending nurse; and Jane Doe 1, attending nurse.

Plaintiff alleges the following. Plaintiff received arthroscopic surgery on March 5, 2007, from Dr. Smith. Pl.'s Am. Compl. ¶ 9. On June 6, 2007, during the second post-operation follow-up, Dr. Smith informed Plaintiff that he needed a full left knee replacement, and informed Defendant A. Rotman, Plaintiff's primary care physician. Id. ¶ 10. On August 31, 2007, Plaintiff submitted a medical request for pain management because of unbearable, constant left knee pain. Id. ¶ 12. Defendant Rotman prescribed morphine and gabapentin. Id.

On May 22, 2008, Plaintiff was sent to Community Medical Center for an ultrasound. Id. ¶ 13. An orthopedic surgeon examined Plaintiff and recommended total knee replacement. Id. ¶ 15. On September 22, 2008, Plaintiff was examined by another orthopedic specialist, who also recommended total knee replacement. Id. ¶ 16. Plaintiff believes that Defendant Rotman should have scheduled Plaintiff for knee replacement surgery. Id. ¶ 17.

On April 27, 2009, Plaintiff filed an inmate 602 appeal, complaining of extreme knee pain 2 and inquiring about knee surgery. Id. ¶ 18. On May 19, 2009, a physician assistant, P.A. Byers, 3 held an appeal interview with Plaintiff. Id. ¶ 19. Byers told Plaintiff that there was no indication 4 that Defendant Rotman submitted a referral for surgery for Plaintiff's left knee. Id. ¶ 20. On May 5 19, 2009, Byers submitted a referral for Plaintiff's total knee replacement. Id. ¶ 21. 6

On May 30, 2009, Plaintiff told LVN Komar, the pill-line nurse, during morning pill-call that 7 he was experiencing excruciating pain in his left leg, and severe pain in his back and hips. Id. ¶ 22.

LVN Komar told Plaintiff to inform Komar if the pain did not lessen. Id. ¶ 23. Plaintiff was unable 9 to walk to retrieve his noontime medication because of the pain. Id. ¶ 24. At 1:30 p.m. that day, Plaintiff begged a passing inmate to summon a correctional officer to his cell. Id. ¶ 25. Officers Long and Bauer ...


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