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Jesse J. Montiel v. Yates

January 30, 2013

JESSE J. MONTIEL, PLAINTIFF,
v.
YATES, ET AL.,
DEFENDANTS.



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

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS THIRTY-DAY DEADLINE

Plaintiff Jesse J. Montiel ("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 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 28, 2011. He names Pleasant Valley State Prison Warden James Yates, Chief Medical Officer Felix Igbinosa, Dr. R. Taher-Pour, Dr. Wynn, P.A. Randolph Wilson, P.A. Barry Green and P.A. R. Das as Defendants.*fn1

A. LEGAL STANDARD

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).

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, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550.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.

B. SUMMARY OF COMPLAINT

Plaintiff is currently incarcerated at Pleasant Valley State Prison ("PVSP"), where the events at issue occurred. Since 2007, Plaintiff has been on pain medication for severe back pain. The medications included Tylenol and other non-steroidal anti-inflammatory drugs ("NSAIDs"). In March 2008, after months of complaining of severe pain and other sensations, Plaintiff underwent an x-ray that revealed two degenerative/herniated discs in his back. In March 2010, Plaintiff was prescribed a combination of Gabapentin and Tramidol, and this combination worked well in controlling his pain and other symptoms.

Plaintiff alleges that in or about June 2010, physicians on "A-Yard" began systematically discontinuing inmate pain medication pursuant to a policy being enforced by Defendant Igbinosa.*fn2

On October 26, 2010, Plaintiff saw Defendant Physician's Assistant Wilson and learned that he had recommended to the physician who would see Plaintiff that his medications should be stopped and he should only be prescribed NSAIDs. Plaintiff contends that Defendant Wilson knew that NSAIDs never worked for Plaintiff. Plaintiff alleges that all Defendants also knew that he had active liver disease and that NSAIDs could therefore be harmful.

On November 26, 2010, Defendant Taher-Pour discontinued Plaintiff's Gabapentin. Plaintiff told Dr. Taher-Pour that he had tried other forms of medications, but that they did not work. Dr. Taher-Pour told Plaintiff that she was stopping the medication on recommendation of Defendant Wilson, and that she would only prescribe the NSAID Ibuprofen pursuant to policy.

Immediately after his Gabapentin was stopped, Plaintiff began submitting medical request forms complaining that the numbness and tingling sensations had come back. He was told by the nurse that pursuant to Defendant Wilson's order, his medication was not to be renewed or reordered.

On December 10, 2010, Defendant Physician's Assistant Green discontinued Plaintiff's Tramidol. Plaintiff alleges that this was done without an examination, as Plaintiff was sick that day and did not make it to his appointment.

Plaintiff continued to submit sick-call forms complaining of severe pain. He was informed that per Defendant Wilson's orders, his medications were not to be refilled or reordered.

On December 26, 2010, Plaintiff was hospitalized in PVSP's infirmary after becoming depressed because of the pain. While hospitalized, he saw Defendant Dr. Wynn, who stated that he would not do anything for Plaintiff's pain because it had already been stopped by a previous doctor and he did not want to go over anyone's ...


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