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Ryan E. Porter, Cdcr #V-40311 v. George Neotti

February 6, 2013

RYAN E. PORTER, CDCR #V-40311 PLAINTIFF,
v.
GEORGE NEOTTI, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b) AND 12(b)(6); AND (2) ISSUING ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE DISMISSED FOR FAILING TO PROSECUTE PURSUANT TO FED.R.CIV.P. 4(m)

Currently before the Court is Defendants Akbari, Allamby, Alvarado, Camarena, Casillas, Chance, Choo, Cobb, Davis, Estrada, Flournoy, Gambel, Garza, Germano, Gonzalez, Hernandez, Jones, Kennedy, Lacurom, Le, Marquez, Neotti, Ochoa, Pauley, Pulido, Rink, Rivera, Rodriquez, Romero, Samson, Sanchez, Scharr, Seeley, Stricklin, Walker, Wall, Williams, and Wilson's ("Defendants") Motion to Dismiss Plaintiff's First Amended Complaint ("FAC"). (ECF No. 80.) Plaintiff has filed an Opposition to Defendants' Motion to Dismiss (ECF No. 111) to which Defendants have filed a Reply (ECF No. 115.)

I. Plaintiff's Factual Allegations

Plaintiff claims arise out of an alleged series of events relating to the contamination of Plaintiff's food. Plaintiff alleges that, beginning in March 2010, his food was contaminated and he suffered resulting medical complications. Plaintiff names as defendants 43 different members of the Richard J. Donovan Correctional Facility's ("RJD") staff and administration, and broadly alleges that these defendants violated his rights under the First, Eighth, and Fourteenth amendments by failing to protect him from the food contamination, providing inadequate medical attention for his resulting medical complications, retaliating and using excessive force against him for attempting to file grievances relating to the food contamination and his resulting medical care, and denying him due process. Plaintiff seeks injunctive and declaratory relief, as well as compensatory and punitive damages.

This overview of Plaintiff's allegations proceeds chronologically, setting forth the events forming the basis of Plaintiff's claims and the defendants involved in each event. The following facts are taken from Plaintiff's verified First Amended Complaint (ECF No. 66) ("FAC"), and do not represent findings of the Court.

1. March-June, 2010: Discovery of food contamination, initial reports In March 2010, Plaintiff began to find "feces, dirt, razor blades, dead mice, disinfectant, [and] bleach" in the food provided to RJD's Sensitive Needs Yard ("SNY" or "protective custody") inmates, including himself. (FAC ¶ 52.) Plaintiff alleges that "general population" inmates, who are responsible for preparing the food provided to the SNY inmates, were responsible for the contamination. (Id. ¶¶ 52-54)

Around this time, Plaintiff showed to Defendants Sgt. Stricklin and Correctional Officer ("C/O") B. Jones a "food tray that had feces and dirt in the food[.]" (Id. ¶ 55) Defendants Stricklin and Jones failed take any action.

Between April and June 2010, Plaintiff filed four administrative appeals regarding the food contamination. Plaintiff received no relief from these appeals. (Id.)

2. June-September 2010: Onset of chronic stomach condition

Beginning in June 2010, Plaintiff began to experience stomach symptoms as a result of the food contamination. (Id. ¶¶ 63, 74-75.) Plaintiff filed a sick call slip, but received no medical treatment. After filing a second sick call slip, he was seen by a nurse and told that he would be "put on a waiting list." (Id. ¶ 63.) He filed a third sick call slip in July 2010, and was seen by a nurse. (Id. ¶ 64.)

In August 2010, Plaintiff experienced "severe diarrhea" and "feverish symptoms," and filed another sick call slip. (Id. ¶ 68.) Three weeks after filing the slip, he was seen by a nurse, provided Imodium tablets for his diarrhea, tested with an electrocardiogram, and told that he would eventually see a doctor. (Id.) In September 2010, Plaintiff "continued to try to exhaust [his] administrative remedies and seek medical attention. To no avail." (Id. ¶ 69.)

3. October 2010: First collapse

At the end of October 2010, Plaintiff collapsed on the floor of his cell, and his cell mate attempted to call for help. (Id. ¶ 70.) Defendant Jones came to Plaintiff's cell, but ignored the calls for medical attention. At some point thereafter, Sgt. Luna, a non-party to this litigation, arrived and took Plaintiff to see a nurse, whereupon he received a medical evaluation and was put on a list to see a doctor. (Id. ¶ 70.)

4. November 2010: Worsening of symptoms and medical treatment In November 2010, Plaintiff began to suffer "severe [medical] complications" including "severe abdominal pain, severe dizz[i]ness, severe bloating and fullness [making it] painful to eat and drink water, . . . bowel movements [that were] green [and] really chalky looking, [and] painful indigestion." (Id. ¶ 73.) Defendant Registered Nurse ("R/N") Estrada took Plaintiff to the central infirmary, diagnosed him with the flu, and provided him with IV fluids and medication. (Id. ¶ 78.) Plaintiff reported the food contamination problem to Defendant Estrada, and stated that he had eaten spaghetti several days prior that had been contaminated with feces, but Defendant Estrada ignored these complaints and asked Plaintiff if he had received a psychological evaluation. (Id. ¶¶ 74-77.)

At or around this time, Plaintiff also saw Defendant Dr. Seeley, and told Defendant Seeley about his stomach problems and the food contamination. Dr. Seeley ignored the complaint regarding food contamination, and told Plaintiff that his stomach problems would probably pass. (Id. ¶¶ 79-80.)

5. December 2010: Ongoing symptoms and medical treatment

At some time in December 2010, Plaintiff's "symptoms became too unbearable," and he collapsed. (Id. ¶ 81.) Plaintiff's cell mate called for help, and Defendant Jones refused to respond. Eventually, someone else called for help. Defendant Estrada arrived and made derogatory comments to Plaintiff. (Id. ¶¶ 82-84.) Plaintiff was placed in a wheelchair, and Defendant Jones wheeled him to the back of his housing facility and left him on a bench, "out in the cold," in only "a pair of boxers, socks, and a white t-shirt." (Id. ¶ 85.) Eventually, two other inmates had to help carry Plaintiff back to his cell. (Id.)

Plaintiff's "unbearable" symptoms continued the next day, and his cell mate called for help once more. (Id. ¶ 86.) Defendant C/O Chance arrived and initially refused to call for help, but eventually did after arguing with Plaintiff's cell mate "for 5 or 6 minutes." (Id. ¶ 87.) Defendant Estrada arrived and reluctantly took him to the central infirmary, where Plaintiff received treatment. (Id. ¶ 88.)

Two days later, Plaintiff himself called for help, and he was taken to Chula Vista Sharp Memorial Hospital, where he received a CAT scan. (Id. ¶¶ 89-91.) Plaintiff attempted to report the food contamination issue to the doctor at the hospital, but the transport officers accompanying him interrupted, and told the doctor that Plaintiff was "psychologically disabled." (Id.) The hospital staff recommended to prison officials that they take Plaintiff to a gastrointestinal specialist. (Id. ¶ 92.) Plaintiff was sent back to RJD, where his symptoms continued. (Id. ¶ 91.)

6. December 2010: Letters to Defendants Neotti, Hernandez, and Chu Plaintiff wrote letters to Defendants Neotti (former warden), Hernandez, and Dr. Ivy Chu, forwarding copies of his grievances regarding food contamination. These letters received no reply. (Id. ¶ 93.) On December 7, 2010, Plaintiff sent a follow-up letter to Defendant Neotti.

(Id. ¶ 94, Ex. 2.)

7. January 6, 2011: Clinic visit and "pruno" incident

On or about January 6, 2011, Plaintiff was called to the medical clinic at his housing facility. Defendant C/O Alvarado initially prevented Plaintiff from entering the clinic and verbally harassed him, but subsequently let him in. (Id. ¶¶ 95-96.)

During Plaintiff's visit, the attending nurse informed Plaintiff that Defendant Jones had told her that Plaintiff was making "jailhouse wine" (or "pruno"), and that the pruno was causing his symptoms. (Id. ¶ 97.)

Also during that visit, Defendant Jones found a batch of pruno in another cell and falsely wrote Plaintiff up for it. Plaintiff was found "not guilty" at a subsequent disciplinary hearing. (Id. ¶¶ 98-100, Ex. 3.)

8. January 28, 2011: Visit with Dr. Seeley

Defendant Seeley called Plaintiff in for a visit on January 28, 2011, at which Plaintiff once again complained of his ongoing symptoms and reported ongoing food contamination. Dr. Seeley was dismissive of these complaints and told Plaintiff to leave. (Id. ¶¶ 101-104.)

At that point, Defendant Alvarado grabbed him by the throat. Defendant Alvarado subsequently falsely accused Plaintiff of pushing him, and Plaintiff was placed in administrative segregation. (Id. ¶¶ 104-105.)

9. February 16, 2011: Disciplinary hearing

On February 16, 2011, Plaintiff attended a hearing regarding the incident with Defendant Alvarado at the January 28, 2011 doctor's visit. Defendant Lieutenant E. Garza prevented Plaintiff from calling his witnesses at that hearing. (Id. ¶¶ 106-107.)

10. February 2011: Additional Grievances

Plaintiff filed a grievance against unnamed medical staff on February 2, 2011, for failing to respond to an emergency call and failing to report the food contamination. (Id. ¶ 115.)

On February 23, 2011, Plaintiff filed a grievance reporting "a cell search that was conducted with the specific intent to seek and destroy [Plaintiff's] documentation and legal work to prevent Plaintiff from filing grievances[.]" (Id. ¶ 113.) Plaintiff does not name any defendants in connection with this incident.

On February 28, 2011, Plaintiff filed another grievance against the medical staff for failing to respond to an emergency call. (Id. ¶ 114.)

11. March 3, 2011: Denial of mail

On March 3, 2011, Defendant Alvarado threw away Plaintiff's mail, and then approached Plaintiff's cell and stated: "You['re] a little bitch, I ain't giving you shit, fuck you and your mail!" (Id. ΒΆ 116.) Plaintiff alleges that he filed a grievance regarding ...


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