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Robert C. Massey, Jr v. M.D. Biter

October 9, 2012

ROBERT C. MASSEY, JR.,
PLAINTIFF,
v.
M.D. BITER, ET AL., DEFENDANTS.



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

ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE ECF No. 1 RESPONSE DUE WITHIN THIRTY DAYS

I. Background

Plaintiff Robert C. Massey, Jr. ("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 February 8, 2012, Plaintiff filed his complaint. ECF No. 1.

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. Id. § 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." Id. § 1915(e)(2)(B)(ii). 2

A complaint must contain "a short and plain statement of the claim showing that the pleader 3 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 4 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 5 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 6 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 7 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 8 allegations are accepted as true, legal conclusions are not. Id. 9

II. Summary of Complaint

Plaintiff was incarcerated at Kern Valley State Prison ("PVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants warden M. D. Biter, chief executive officer/manager of health services for KVSP T. Brewer, and medical doctor C. K. Chen.

Plaintiff alleges the following. On April 21, 2011, Plaintiff was seen by Defendant Chen regarding pain in his knee, and informed the doctor that Tylenol and ibuprofen did nothing for the pain. Plaintiff requested that he be placed back on tramadol, and given a knee support. Defendant Chen denied the request. On May 3, 2011, Plaintiff was seen by Defendant Chen about receiving pain medication, knee support, and a copy of the chrono for knee support. Plaintiff was denied. On May 26, 2011, Plaintiff was again seen by Defendant Chen regarding pain in his right knee and knee support and was again denied. October 28, 2011, Plaintiff was again seen by Defendant Chen regarding the same problem. Plaintiff has pain in his right knee due to having a serious fracture of the right tibia, and having a permanent condition of tendinitis which causes chronic pain and inflammation in his knee. Defendant Chen has reviewed Plaintiff's medical records each time and refused to issue the medication for pain or the knee support chrono. On April 26, 2011, July 7, 2011, and October 26, 2011, a specialist via tele-meds had informed Defendant Chen that Tylenol and ibuprofen will not stop the pain and will cause harm to prisoner, and recommended that Plaintiff be placed back on tramadol. Defendant Chen refused.

Plaintiff had made several complaints regarding Defendant Chen by 602 inmate appeals and ADA forms, all of which are reviewed by Defendant T. Brewer. On August 31, 2010, Plaintiff had 2 sent a letter to health care receiver J. Clark Kelso regarding the medical treatment from Defendant 3 Chen. The letter was forwarded to Defendant T. Brewer. On March 8, 2011, Plaintiff's appeal 4 regarding his problems with Defendant Chen's medical treatment was reviewed by Defendant T. 5

Brewer and it was denied. On July 14, 2011, Plaintiff filed a CDC 1824 ADA form requesting a 6 chrono and knee support, and part of the action was granted. Defendant Chen refused to issue the 7 items, including pain medication. Plaintiff against alerted Defendant Brewer of the problem 8 between November and December by a personal letter, requesting Defendant Chen have no more 9 contact or visits with Plaintiff, but Defendant Brewer failed to take any action.

Plaintiff contends deliberate indifference to a serious medical need. Plaintiff requests as relief compensatory and punitive damages, and an order that 1) Plaintiff be provided care for his knee, 2) Plaintiff's pain medication be reinstated, and that another care provider be assigned.*fn1

III. Analysis

The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know[] of and disregard[] an excessive risk to inmate health or safety . . . ." Id. at 837.

"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious ...


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