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Dell Pullett, Plaintiff v. A. Cabrera

May 13, 2013

DELL PULLETT, PLAINTIFF,
v.
A. CABRERA, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER SECTION 1983 OBJECTIONS, IF ANY, DUE IN THIRTY DAYS

I. BACKGROUND

Dell Pullett is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint commencing this action on October 29, 2010. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on October 29, 2012, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 11.) On November 30, 2012, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 13.)

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 Afrivolous 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). ANotwithstanding 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 is required to contain Aa 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 A[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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausnsonbility standard. Id.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility

in Corcoran, California. The events at issue in the First Amended Complaint occurred at Kern Valley State Prison (KVSP) in Delano, California, while Plaintiff was incarcerated there. Plaintiff names as defendants Nurse A. Cabrera (RN), Nurse Jones (LVN), Nurse Rodriguze (LVN), Correctional Officer (C/O) Morrow, Dr. Ashby, and Doe Defendants 1-10. Plaintiff's factual allegations follow.

On August 9, 2008, after passing out on the basketball court, Plaintiff was helped to the medical clinic at KVSP and informed staff that something was seriously wrong with his right foot. Plaintiff informed defendant Nurse Rodriguze that he was in severe pain, his right foot was swollen to twice its size and he could not move it, and he needed to see a doctor. C/O Morrow was working in the clinic and heard Plaintiff tell Rodriguze that he injured his foot playing basketball. After Rodriguze gave Plaintiff some ice, C/O Morrow told Rodriguze there was nothing wrong with Plaintiff and to send him back to his building, so that is what Nurse Rodriguze did. Nurse Rodriguze failed to offer Plaintiff medical treatment except the ice, and failed to contact anyone to provide Plaintiff medical attention, explaining that it was the Weekend and none of the doctors were available. Rodriguze told Plaintiff he would be seen by a doctor on Monday (three days later).

On August 11, 2008, Plaintiff waited all day to be called to the doctor, but he was not called. Plaintiff made another request for medical care on August 18, 2008, and he was called to see Dr. Ashby on August 19, 2008, but his visit was cancelled. On August 20, 2008, Plaintiff was seen by Dr. Ashby, who gave Plaintiff a "rudimentary examination." Amd Cmp, Doc. 13 at 6 ¶19. Plaintiff attempted to explain about his pain and the obvious swelling. Dr. Ashby would not provide the treatment Plaintiff needed. Plaintiff was told that there was nothing wrong with his foot and given Ibuprofen, even after Plaintiff told Dr. Ashby that Ibuprofen made his stomach hurt. Dr. Ashby did not care, and gave Plaintiff Ibuprofen anyway. Plaintiff asked for a wheelchair, and Dr. Ashby said no, but he told someone to give Plaintiff some crutches. Plaintiff went back to his housing unit, untreated and still in pain.

On August 22, 2008, Plaintiff's right foot was x-rayed. Plaintiff was still in considerable pain. On August 28, 2008, the results of the x-rays were in and Plaintiff was told he would have a follow-up medical appointment. Two weeks passed without Plaintiff being called for the appointment. Plaintiff realized that he wasn't getting any help because he had filed an inmate appeal against medical staff and they were retaliating against him for that reason. On September 15, 2008, Plaintiff made another request for health care, and two days later he was called.

On September 17, 2008, Dr. Ashby met with Plaintiff. Plaintiff told Ashby that his foot was not getting better. Ashby told Plaintiff there was nothing wrong with him. Plaintiff asked to see another doctor, but Ashby got mad and said No, there's nothing wrong with you, get out of my office. Then Plaintiff went to get more health care request forms.

On September 21, 2008, Plaintiff submitted more health care request forms, but the medical staff, including Dr. Ashby, refused to treat Plaintiff. Three weeks later, Plaintiff was taken to Pacific Orthopedic Medical Group. As soon as the Orthopedic Doctor, Dr. Paik, saw Plaintiff's foot, he said that Plaintiff needed emergency surgery. Dr. Paik said that Plaintiff should have had surgery as soon as the injury occurred, and now his foot ...


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