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. 77 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Findings and Recommendations
Plaintiff Richard Ernest Anaya ("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 April 30, 2012, Plaintiff filed his Fifth Amended Complaint. ECF No. 77. The 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 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 2 claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 3
A complaint must contain "a short and plain statement of the claim showing that the pleader 4 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 8 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 9 allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Fifth Amended Complaint
Plaintiff was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: chief medical officer S. Lopez, medical doctor Chen, medical doctor Dileo, J. White and R. Keldgore, and warden Herrington. Plaintiff alleges that Defendants 1) denied Plaintiff grab bars for his cell toilet, 2) denied Plaintiff single cell accommodation, resulting in Plaintiff contracting Hepatitis B, 3) delayed surgery for Plaintiff's right knee, 4) failed to provide follow-up care for Plaintiff's lower back, and 5) took away Plaintiff's adequate pain medication. Plaintiff's specific allegations against each Defendant are as follows.
On July 13, 2009, Defendant S. Lopez denied Plaintiff a medical chrono for single cell, causing Plaintiff to contract Hepatitis B by using an unsanitary toilet in his cell. Fifth Am. Compl. 2:23-27. Defendant Lopez was aware of the risk of Plaintiff contracting Hepatitis B because Plaintiff bleeds when he has a rectal prolapse. Id. at 2:27-3:1. Plaintiff also has irritable bowel syndrome and has "wanton" pain when he prolapses. Id. at 3:1-3. Plaintiff's lower back goes in and out and he has to lie down on his bunk until the pain passes. Id. at 3:3-4. Plaintiff also has incontinence problems where he defecates on himself, requiring that he clean the bathroom area of the cell while in pain because he has a cell mate. Id. at 3:5-7. Plaintiff is deprived of frequent access to the toilet because he has a cell mate. Id. at 3:7-11.
Plaintiff had received a previous chrono in which he received single cell status because of his 2 medical condition (rectal prolapses) and susceptibility to contract Hepatitis, herpes, and HIV. Id. at 3 3:11-15. Because Defendant Lopez did not comply with the chrono, Plaintiff contracted Hepatitis.
On March 20, 2006, Dr. Vidovszky, a UC Davis gastrointestinal professor and medical 6 surgeon, declared that Plaintiff is permanently disabled, and recommended that Plaintiff be single 7 celled. Id. at 3:22-26. On July 11, 2006, Dr. Tan, a surgeon at the doctors' hospital of Manteca 8 agreed, and found that Plaintiff is permanently disabled and should be single-celled. Id. at 4:1-5. 9
Defendant S. Lopez is responsible for all medical care that Plaintiff receives and needs. Id. at 4:6-8.
Plaintiff contends that he should receive morphine sulfide for his pain. Id. at 4:8-9. Plaintiff is in pain from his right knee, lower back, and rectal prolapse. Id. at 4:11-14.
Defendant S. Lopez disregards Plaintiff's lower back care. Id. at 4:16-17. Plaintiff has flattened vertebrae and bulging discs in his back. Id. at 4:17-22. Plaintiff was not provided follow-up care, namely to see a back specialist as recommended by doctors at High Desert State Prison ("HDSP"), Plaintiff's former prison of incarceration, to determine whether he needed surgery, which left Plaintiff in pain for the past three years. Id. at 4:22-27.
On April 8, 2008, Reno orthro surgery center specialty clinic signed Plaintiff for urgent knee surgery, ordered by Dr. Uppal, a surgeon.*fn1 Id. at 5:1-3. The surgery was going to be knee reconstruction. Id. at 5:3-6. On July 18, 2011, Dr. Penal of UC Davis, a knee surgeon, informed Plaintiff that he now needs a knee replacement rather than reconstruction. Id. at 5:7-10.
Plaintiff has been at KVSP since January 27, 2009, and for the past three years, the urgent surgery was not done, leaving Plaintiff in pain. Id. at 5:10-13. Despite using crutches, Plaintiff's knee is very loose and one slight movement could pull the knee out of the socket, which is very painful. Id. at 5:13-16. Plaintiff has use of a brace, but that causes pain because it is bent. Id. at 5:17-18. Plaintiff's wheelchair was given back because it caused Plaintiff's lower back to go into pain. Id. at 5:18-20. Knee surgery was needed, and Defendant Lopez did not provide it, causing Plaintiff long-term pain and suffering. Id. at 5:21-23. 2
On December 18, 2006, urologist and surgeon Chamie, at UC Davis, reported that an ADA 3 grab bar near the toilet would remove pressure off of Plaintiff's abdomen and less likely to 4 exacerbate the prolapse from abdominal strain. Id. at 6:1-6. Medical doctors at HDSP qualified 5 Plaintiff for ADA grab bar accommodations around the toilet. Id. at 6:6-10. For the past three years 6 at KVSP, Plaintiff was not given ADA accommodations leaving him pain and long term suffering. 7
On February 9, 2009, Defendant Chen denied Plaintiff's chrono for a single cell, causing him to contract Hepatitis B from use of an unsanitary toilet. Id. at 7:2-6. Plaintiff repeats his claims against ...