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Joey Torrey v. Lovett

October 19, 2012

JOEY TORREY,
PLAINTIFF,
v.
LOVETT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's complaint (Doc. 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. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a ". . . short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.

I. PLAINTIFF'S ALLEGATIONS

Plaintiff names the following as defendants: Lovett, contract physician; Jackson, associate warden; Williams, chief medical officer; Heatley, supervising medical officer; Todd, physician's assistant; Stahl, physical therapist; and Smith, physician. Plaintiff alleges that, in November 2009, he was sent to Mark Twain Saint Joseph's Hospital for a total right knee replacement, performed by defendant Lovett who is a contract orthopedic specialist. Plaintiff states that, "[u]pon returning from the surgery and the years that followed," he experienced "unwarranted complications and side effects." Plaintiff next states that, on July 17, 2009, he wrote to defendant Jackson explaining that he was still unable to sit or bend his knee without pain.*fn1 In February 2010, plaintiff was returned to the outside hospital for a "clean out" procedure to address problems with the new knee. According to plaintiff, "[n]ot even ten days later" he wrote defendant Jackson again, this time complaining that B-Facility medical personnel, including defendant Todd, were negligent and indifferent to plaintiff's post-operative care. Plaintiff states that in the days after his return from the February 2010 surgery prison staff refused to give plaintiff a "cell feed" chrono, which he says was necessary to avoid having to walk on the painful knee. He states that defendant Todd laughed at him and taunted him to "box" for the chrono. Plaintiff states that he never received a "cell feed" chrono and "no one examined Plaintiff's wound to see if it was healing properly . . . nothing."

Next, plaintiff states that he wrote defendant Heatley on December 28, 2010, complaining that the knee replacement procedure had failed and that he was still experiencing pain. Plaintiff accused defendant Lovett of failing to correctly perform the November 2009 procedure.

Plaintiff states that he submitted a prison grievance concerning the allegedly botched surgery on January 1, 2011, and that defendant Heatley responded on January 30, 2011, by recommending that plaintiff "continue the current work which is planned with the podiatrist and continued physical therapy." According to plaintiff, continued physical therapy would cause additional damage.

According to plaintiff, "corrective surgery" occurred on April 4, 2012, performed at San Joaquin General Hospital by Dr. Manning. Plaintiff states that Dr. Manning prepared a report following the surgery in which the doctor noted "significant hypertrophic bone in the posterior medial aspect of the tibia just posterior to the tibial base plate." Plaintiff claims that Dr. Manning's report is proof of defendant Lovett's negligence in the November 2009 surgery.

On April 25, 2012, defendant Stahl, a physical therapist, wrote plaintiff a chrono "stipulating that Plaintiff did not need any assistance to get around the institution. . . ." According to plaintiff, he did in fact need assistance, particularly given the April 4, 2012, operation. For this reason, plaintiff also states that defendant Stahl was incorrect in stating that plaintiff had no job restrictions. Plaintiff states that, on May 2, 2012, defendant Smith denied his request for off-site physical therapy. On May 7, 2012, defendant Smith wrote a chrono indicting that plaintiff was capable of "full duty."

Plaintiff claims that defendant Lovett committed "medical malpractice, gross negligence, and professional negligence" in connection with the November 2009 procedure. He claims that defendants Jackson, Williams, Heatley, Smith, Stahl, and Todd were "negligence and gross negligent [sic]" for failing to act to address his constant pain "not to mention when said Defendants ignored Plaintiff's physical evidence of Plaintiff's right knee 'popping' and the patella being able to rotate 360 degrees." Plaintiff also claims that defendant Heatley was deliberately indifferent to his care following the 2009 surgery. According to plaintiff, "[b]y Heatley's incompetence, negligence, and gross negligence, Plaintiff has been subject to many years of unnecessary pain, suffering, and further injury." Plaintiff claims that defendant Smith was deliberately indifferent by ignoring his doctor's recommendation for off-site physical therapy. Plaintiff states that Smith is further liable for stating that he was capable of full work duty. He also claims that defendant Stahl is liable for failing to "give the plaintiff a massage to plaintiff's right knee."

II. DISCUSSION

Plaintiff's claims as against each defendant are summarized as follows: Lovett -- Performed total right knee replacement in November 2009;

Lovett committed "medical malpractice, gross negligence, and professional negligence" in connection with the November 2009 procedure.

Jackson -- Plaintiff wrote to defendant Jackson explaining that he was still unable to sit or bend his knee without pain; plaintiff wrote defendant Jackson again, this time complaining that B-Facility medical personnel were ...


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