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Johnny Lee Sommerhalder v. M. Wilson

November 16, 2012

JOHNNY LEE SOMMERHALDER,
PLAINTIFF,
v.
M. WILSON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 1)

Screening Order

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(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. 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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at the Sierra Conservation Center at Jamestown (SCC), brings this civil rights action against correctional officials employed by the CDCR at SCC. Plaintiff names the following individual defendants: Sergeant M. Wilson; Correctional Officer s (C/O) Does one through three; N. Miles; R. Turner; J. St. Clair, M.D.; C. Muehldorf; P. Bolles; Dr. Krpan, M.D.; Dr. Henry; Chief Deputy Warden W. Miller; Warden F. Chavez; Dr. Smith, M.D.

On August 11, 2009, Plaintiff was transported from SCC to an outside hospital. Plaintiff was transported in a CDCR van. Plaintiff was placed in leg chains, a waist chain and handcuffs. Once in the van, Plaintiff became aware of something slippery on the van floor. Upon arrival at the hospital, Plaintiff, along with another inmate, was ordered to exit the van. Plaintiff alleges that, contrary to protocol and policy, none of the officers present helped him exit the van. As he exited the van, Plaintiff slipped and fell, "landed on his head and neck, and hurt his arm and leg and was knocked unconscious." Plaintiff alleges that he regained consciousness, and was "helped to his feet and made to walk" into the hospital. Plaintiff alleges that the physical therapist "declined to give Plaintiff his normal treatments and tried to ease Plaintiff's severe discomfort." Plaintiff alleges that "the officers" failed in their duty to Plaintiff.*fn1

Plaintiff alleges that he heard an eye witness (the sergeant or one of the other Doe officers) state: "Did they clean the van with Armor All I told them not to." Plaintiff contends that this indicates that Defendant Turner, responsible for vehicle maintenance, was instructed prior to this incident not to put "slippery stuff" inside the van.

Plaintiff alleges that he was given "absolutely no medical care, nor examined to determine if there were any significant injuries." Plaintiff alleges that upon his return to SCC, he was seen by Defendant Miles, a nurse, but was not seen by a physician. Plaintiff alleges that his head was not checked, although he suffered from head trauma.

On August 31, 2009, Plaintiff was seen by Dr. St. Clair. Plaintiff alleges that "the only thing Dr. St. Clair did was tell plaintiff to continue physical therapy. Still plaintiff's head was not checked, and for that matter neither was his back." Plaintiff alleges that "because it was as if the institutional medical staff were afraid they might find something seriously wrong, an X-ray was not even ordered until 10-20-09 by Dr. Krpan. The X-rays revealed "degenerative changes and pseudo-spondylolistheses (forward dislocation of vertebra) lf L4-L5, with disk space narrowing." On December 11, 2009, Dr. Henry examined Plaintiff and ordered an EMG of Plaintiff's lower extremities and a CT scan. Dr. Henry also recommended that Plaintiff receive an injection for his pain.

Plaintiff suffers daily from pain. Referring to defendants in general, Plaintiff alleges that "by their own records plaintiff was knocked unconscious yet no one has looked at either his neck or head." Plaintiff alleges that he suffers from permanent injuries that were not present prior to the incident at issue.

Plaintiff filed an inmate grievance regarding the slip and fall incident. In his written response, Chief Deputy Warden W. Miller indicated that no-slip strips should have been placed on the van steps, and personnel were "updated" on the policy of providing assistance to inmates ...


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