United States District Court, E.D. California
GREGORY C. BONTEMPS, Plaintiff,
SOTAK, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
This case was before the court for hearing on defendant Smith's motion to dismiss, ECF No. 63. Plaintiff appeared telephonically. California Deputy Attorney General Diana N. Chinn appeared on behalf of Smith. Wendy M. Motooka appeared on behalf of Sotak. A footnote in defendant Smith's motion to dismiss suggests that plaintiff may have served his complaint on the wrong Dr. Smith. ECF No. 63-1 at 1 n.2. Rather than seek dismissal because the wrong Smith is before the court, the Deputy Attorney General opted to seek dismissal on the ground that the allegations against the Smith named in the complaint are not sufficient to state a claim. However, the footnote called into question whether the California Attorney General's Office is representing the Smith who was served with the summons and complaint, thus raising doubt as to the standing or authority to proceed on a motion to dismiss on behalf of an unrepresented party. To resolve this issue, the undersigned conducted a hearing on March 19, 2013. ECF No. 76. At the hearing, defense counsel and plaintiff clarified that service had, in fact, been accomplished on the correct defendant Smith and that the office of the Attorney General does represent him. Accordingly, the court addresses the motion to dismiss.
I. The Complaint
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C § 1983. He proceeds on the Fourth Amended Complaint filed on October 13, 2011. ECF No. 24. The court found that the complaint stated potentially cognizable claims against defendants Smith and Sotak. ECF No. 25. In the complaint, plaintiff alleges that he was arrested on July 30, 2008 and placed in the Sacramento County Jail the following day. Id. at 3, 38. At the time, plaintiff had preexisting injuries to his back and right foot. Id. at 4, 21, 24, 31. These injuries required that plaintiff use a back brace, air cast, and a wheelchair. Id. at 3-5, 38. Plaintiff also took a variety of medications at the time of his arrest. Id. at 3-5, 29, 30, 31.
Plaintiff claims that when he was booked into the jail, defendants took away his wheelchair, back brace, air cast, and medications. Id. at 3, 4, 38. The assistive devices were not returned to plaintiff for 17 months. Id. at 38. Defendants assigned plaintiff to an upper bunk on an upper floor for the first five days of his stay at the jail. Id. at 4, 39. Plaintiff had to get other inmates to help him move anywhere, use the bathroom, and bathe. Id. at 39. He complained several times and filed grievances, but his assistive devices were not returned to him. Id.
Plaintiff attached some medical records to the complaint. Id. at 8 et seq. To the extent they are legible and relevant to plaintiff's claims, they reveal the following:
Plaintiff was booked into the jail on July 31, 2008. Id. at 29. The intake form noted plaintiff's "Rt leg boot" and listed his medications (Norco, Neurontin, and Vicodin). Id. The intake officer recorded that plaintiff would be housed in "2East." Id. Plaintiff was seen by a medical care provider who noted that plaintiff had no swelling and could walk without a cane. Id. at 31. The following day, defendant Smith (a medical doctor) issued a "Miscellaneous Medical Needs" form for plaintiff indicating that he should be placed on a lower tier in a lower bunk and should be provided a brace for his right leg for the length of his stay. Id. at 15.
A registered nurse charted on August 5, 2008 that plaintiff had come to the jail with bottles of "hydrocodone - apap, " "hydrocodone - acet, " ibuprofen, and trazadone. Id. at 30. These bottles were given to a jail officer. Id. On August 13, 2008, a medical provider charted that plaintiff requested stool softener to be taken with his Norco. Id.
On September 1, 2008, defendant Sotak wrote that he reviewed "ortho notes" regarding plaintiff's foot injury. Id. at 17.
On November 6, 2008, defendant Sotak noted that Dr. Neblett (an orthopedist, see id. at 21) had said that "all [plaintiff] should need is a wide supportive shoe." Id. at 25. Accordingly, defendant Sotak provided plaintiff with a "post-op walking shoe" and put plaintiff's "walking air boot" in plaintiff's property. Id. ("There is no indication for the walking air boot at this time."). Defendant Sotak also issued an order that plaintiff should have a lower bunk on a lower tier and should not engage in prolonged standing, stooping, or walking for the length of his stay. Id. at 11.
On November 17, 2008, plaintiff complained to Nurse James Austin that he wanted his medications changed to those "prescribed by my doctors." Id. at 24. Plaintiff also complained that the boot he had been provided was not working and that the orthopedist had been wrong. Id. Nurse Austin noted that plaintiff "has minor variance of gait[, but] displays no distress during ambulation and weight bearing. [Plaintiff] ascends and descends exam table without assistance." Id. Nurse Austin wrote that someone would follow-up with plaintiff regarding his complaints after reviewing his chart. Id.
Defendant Sotak issued an order on November 26, 2008 that plaintiff should not stand, stoop, or walk for more than 45 minutes at a time. Id. at 10.
Plaintiff complained on January 18, 2009 that he had not received his Norco since January 14th. Id. at 18. Defendant Sotak ordered plaintiff's Norco renewed the following day. Id. Plaintiff refused to be seen for a medical welfare check on February 10, 2009. Id. at 12. On March 7, 2009, a medical provider noted that plaintiff's right foot was swollen and plaintiff complained of pain rated 10 on a scale from one to 10. Id. at 13. According to the notation, plaintiff could not walk with crutches but could ambulate to two meters, was taking Norco, and was not in apparent distress. Id.
The following day, a care provider (possibly defendant Smith, although the signature is not entirely legible) noted that plaintiff had not had his air cast since December 2008. Id. Plaintiff told defendant Smith that he had never been seen by the orthopedist, who thought plaintiff would only need a post-op shoe. Id. Plaintiff asked for Neurontin to treat his back pain. Id. The care provider ordered that plaintiff receive a soft ...