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Wayne Pickering v. Ken Clark

April 20, 2013

WAYNE PICKERING, PLAINTIFF,
v.
KEN CLARK, ET AL.,
DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM ECF No. 17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

I. Background

Plaintiff Wayne L. Pickering ("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 action pursuant to 42 U.S.C. § 1983. On June 9, 2011, Plaintiff initiated this action by filing his complaint. On January 11, 2012, the Court dismissed the complaint for failure to state a claim with leave to amend. On February 1, 2012, Plaintiff filed his first amended complaint. On October 15, 2012, Plaintiff was granted leave to file a second amended complaint. On November 13, 2012, Plaintiff filed his second amended complaint. ECF No. 17. The second amended complaint is before the Court for screening.

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). 2

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 4 claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 5

A complaint must contain "a short and plain statement of the claim showing that the pleader 6 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 9 U.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.

II. Summary of Second Amended Complaint

Plaintiff was incarcerated at California Substance Treatment Facility ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: warden Ken Clark; A. Enenmoh, chief medical officer; P. Brightwell, correctional counselor; Tim Byers, physician assistant; John Doe 1, medical employee; Jane Doe 2, medical employee; Denise Greene, doctor; E. Jean Pierre, doctor; Brian Lee, official; Kevin Lee, doctor; Lewis, doctor; Liu, doctor; J. Metts, doctor; G. Miller, official; R. Mounce, official; Aron Rotman, doctor; S. Salmi, official; G. Wright, official; and L. Zinani, official.

Plaintiff alleges the following. The cartilage in Plaintiff's left knee was disintegrated, with shards floating in Plaintiff's left knee, causing excruciating pain. Plaintiff suffered substantial impairment to walking, sitting, sleeping, and other activities. CDCR doctors had provided accommodations regarding his left knee, including knee braces, pain medication, lower-bunk and lower-tier housing restrictions. Second Am. Compl. ("SAC") ¶¶ 10-11.

On April 19, 2006, Defendant Greene evaluated Plaintiff's left knee, documenting Plaintiff's pain. Defendant Greene wrote a request for Plaintiff to receive an MRI. However, the request was labeled as routine. SAC ¶ 14.

On July 7, 2006, Defendant Salmi personally evaluated Plaintiff and documented that Plaintiff was suffering severe and debilitating pain in his left knee. Defendant Salmi noted that 2

Plaintiff had not yet received an MRI. Defendant Salmi ordered an X-ray, and submitted a request 3 for Plaintiff to be seen by an orthopedic specialist. The request for orthopedic specialist was listed 4 as routine. SAC ¶ 15. An x-ray was taken on July 13, 2006. SAC ¶ 16. 5

On July 21, 2006, Defendant Salmi again evaluated Plaintiff and documented his condition.

SAC ¶ 17. On August 14, 2006, an MRI was finally conducted, revealing substantial damage in 7 Plaintiff's left knee. SAC ¶ 18. On October 4, 2006, Defendant Salmi evaluated Plaintiff, noted 8 Plaintiff's condition, and that Plaintiff had yet to see an orthopedic specialist. SAC ¶ 19. On 9 October 18, 2006, an orthopedic specialist examined Plaintiff and determined that Plaintiff needed arthroscopic surgery on his left knee. SAC ¶ 20. On November 9, 2006, Defendant Salmi evaluated Plaintiff and submitted a request to the chief medical officer for Plaintiff to receive the arthroscopic surgery. The request was not marked urgent. SAC ¶ 21.

On May 5, 2007, Plaintiff finally received the arthroscopic surgery. The surgery revealed internal derangement throughout Plaintiff's left knee. On March 21, 2007 and June 6, 2007 the orthoscopic surgeon evaluated Plaintiff's knee and informed him that he may ultimately need total knee replacement. SAC ¶¶ 25, 26. On June 21, 2007, Defendant Salmi evaluated Plaintiff and documented that Plaintiff still suffered from severe and debilitating pain. SAC ¶ 27.

On December 16, 2007, Defendant Lee evaluated Plaintiff, and referred a request to the chief medical officer for further evaluation by the orthoscopic surgeon. The request was listed as routine. SAC ¶ 29. On January 31, 2008, Defendant Lee injected a substance into Plaintiff's left knee to help relieve Plaintiff's pain. SAC ¶ 31. On March 12, 2008, the orthoscopic surgeon again evaluated Plaintiff and documented his left knee pain. SAC ¶ 32.

On May 22, 2008, Plaintiff was immediately transported to an outside hospital by ambulance because of the severe and debilitating pain and swelling. The surgeon prescribed that Plaintiff be scheduled for a consultation for total knee replacement. SAC ¶ 33.

On June 6, 2008, Defendant Rotman submitted an urgent request for Plaintiff to be evaluated by the orthopedic surgeon. SAC ¶ 35. On June 10, 2008, Defendant Enenmoh altered the request to routine, without personally evaluating Plaintiff. SAC ¶ 36. On July 9, 2008, Defendant Rotman evaluated Plaintiff and documented that Plaintiff's status had become worse, and his need for total 2 knee replacement was urgent/high priority. SAC ¶ 37. On August 2, 2008, Defendant Rotman 3 evaluated Plaintiff and documented his status as stable, and changed the priority from urgent to be 4 seen within thirty days. SAC ¶ 38. On August 5, 2008, Defendant Enenmoh altered the request to 5 reflect that Plaintiff was to be taken for consultation with an orthopedic surgeon rather than to 6 receive a total knee replacement surgery. SAC ¶ 39. 7

On August 27, 2008, Defendant Enenmoh found that Plaintiff's condition constituted a 8 disability and warranted reasonable and necessary accommodations. SAC ¶ 40. On September 9, 9 2008, October 7, 2008, and December 30, 2008, Defendant Rotman evaluated Plaintiff and documented that he still suffered from severe and debilitating pain because of the left knee and was still awaiting a total knee replacement surgery. SAC ¶¶ 42, 44, 46. On January 21, 2009, Defendant Rotman ordered that Plaintiff be given a wheelchair. SAC ¶ 47.

On January 27, 2009, Defendant Byers submitted a written request for Plaintiff to be seen by an orthopedic surgeon. SAC ¶ 48. Defendant Lewis evaluated Plaintiff on February 5, 2009. SAC ¶ 49. On February 19, 2009, Defendant Rotman prescribed medical services within thirty days. SAC ¶ 50. CDCR nursing staff on March 17, 2009 evaluated Plaintiff. SAC ¶ 51. On April 27, 2009, Plaintiff filed a grievance complaining of his lack of total knee replacement. SAC ¶ 52. Defendant Miller rejected the appeal, under the supervision, influence, and control of Defendant Enenmoh. SAC ¶¶ 53, 54.

On May 7 and May 8 of 2009, Defendant Rotman evaluated Plaintiff. Defendant Rotman prescribed that Plaintiff be seen by the orthopedic surgeon within thirty days. SAC ¶¶ 55, 56. On May 19, 2009, Defendant Byers submitted a request to Defendant Enenmoh for Plaintiff to receive knee replacement surgery. SAC ¶ 57.

On May 30, 2009, Plaintiff was rushed by CDCR officers to the medical clinic on a gurney due to excruciating pain for emergency treatment. SAC ¶ 58. A nurse evaluated Plaintiff and called the prison's infirmary to send an ambulance to pick Plaintiff up and take him to the emergency room. Defendant Doe 1 denied the request, and an officer transported Plaintiff to the emergency room in a golf cart. SAC ¶ 61. Plaintiff's ankles are ...


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