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Shawn anderson v. Jeffery Beard

March 29, 2013

SHAWN ANDERSON,
PLAINTIFF,
v.
JEFFERY BEARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)

AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS SCREENING ORDER

I. PROCEDURAL HISTORY

On March 1, 2013, Plaintiff Shawn Anderson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.) His Complaint is now before the Court for screening.

II. SCREENING REQUIREMENT

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF COMPLAINT

The Complaint identifies the following prison officials as Defendants: (1) Jeffery Beard, Secretary, California Department of Corrections and Rehabilitation*fn1 ; (2) Jong Y. Moon, M.D., Corcoran State Prison (Corcoran); (3) Julian Kim, M.D., Corcoran; (4) Forester, M.D., Sierra Conservation Center (SCC); (5) Young N. Piak, M.D., Corcoran; (6) Jin Yu, M.D., Corcoran; (7) John Doe #2, Chief Medical Officer; and approximately ninety-eight additional John Does.

Plaintiff alleges the following:

Plaintiff injured his ankle playing basketball at Corcoran on July 18, 2011. (Compl. at 5.) Dr. Moon examined x-rays which revealed a fracture and prescribed three doses of morphine daily, ordered an MRI, and issued a temporary cast and use of a wheelchair. (Id. at 9, 10.)

At some point Dr. Piak ordered Dr. Yu to remove Plaintiff's cast so the ankle could be examined. Dr. Yu complied and then applied a wrap to the ankle. Days passed between the removal of the cast and examination. Plaintiff suffered severe pain without the protection of the cast. (Id. at 9.) Dr. Piak eventually examined Plaintiff's ankle and determined that another MRI was necessary. A cast was not reapplied and the ankle was left with only a wrap. (Id. at 9, 10.)

An MRI was conducted on July 26, 2011 and revealed a torn ligament and tendon. On September 12, 2011, Dr. Piak recommended reconstructive surgery. On September 20, 2011, Dr. Moon determined that there was no fracture and that Plaintiff was suffering from other unspecified complications; Moon reduced Plaintiff's medication and referred him back to Dr. Piak.

Plaintiff was unable to tolerate his pain with the reduced medication and sought out Dr. Yu to increase it. Yu recommended surgery. Doe #2 denied Yu's surgery recommendation on November 3, 2011. Yu saw Plaintiff again on November 17, 2011, and again recommended surgery. The recommendation was denied by Doe #2 on November 29, 2011. (Id. at 7.)

Defendant Yu saw Plaintiff a third time on December 13, 2011. Yu maintained that surgery was needed, but denied Plaintiff orthopedic shoes. On February 7, 2012, Yu saw Plaintiff and denied him a cane because of his housing assignment. Plaintiff was allowed to use a wheelchair. (Id. at 8.) Dr. Yu ordered physical therapy, but the rehabilitation exercise exceeded Plaintiff's physical capabilities. (Id. at 10.) Plaintiff underwent surgery on February 22, 2012.

Two days after the surgery Dr. Bregovskaya examined Plaintiff and determined that Plaintiff had in fact torn a ligament and suffered a fracture. Beregovskaya diagnosed the ankle as chronically unstable. On March 2, 2012, Yu increased Plaintiff's morphine dosage. Later that month Plaintiff's ankle gave out. The cast was removed on April 15, 2012; Dr. Piak discovered an infection and prescribed antibiotics. (Id. at 8.)

On April 17, 2012, Dr. Kim examined the infection and conducted an emergency procedure. Dr. Oberegosky saw Plaintiff for a follow-up exam on March 21, 2012. On August 16, 2012, Dr. Piak conceded that bone fragments ...


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