United States District Court, E.D. California
ANTHONY D. WAFER, Plaintiff,
W. SUESBERRY, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (ECF No. 59)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Anthony D. Wafer ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds against Defendants Suesberry and Reynolds for failure to provide medication in violation of the Eighth Amendment. (ECF No. 49.) Default has been entered against Defendant Suesberry. (ECF No. 58.)
Plaintiff filed a Motion for Default Judgment against Defendant Suesberry on January 9, 2014, and the matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Defendant Suesberry has not appeared in this action or otherwise filed a timely opposition to the motion. The motion is deemed submitted. Local Rule 230(l). For the reasons that follow, the Court recommends denial of Plaintiff's motion for default judgment without prejudice.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2009, Plaintiff filed his second amended complaint. (ECF No. 17.) Following screening pursuant to 28 U.S.C. § 1915A, this action proceeded against Defendants Suesberry, Reynolds and Hasadsir for failure to provide medication in violation of the Eighth Amendment. (ECF No. 50.)
With regard to his claims against Defendant Suesberry, Plaintiff alleged as follows:
On April 24, 2003, W. Suesberry, MD, performed "excision surgery" on plaintiff to remove an "keloid" formation from the right side of plaintiff's head, behind his right ear. During this procedure, Suesberry performed a "skingraft" on the right front neck area of plaintiff, without plaintiff's permission, to remove "skin & flesh" from that area to be sewn into the area on plaintiff's head, behind the right ear. Upon being released from the out-patience surgery clinic at Delano Regional Medical Center, plaintiff was taken back to CSP-Corcoran, and was advised by prison staff that no pain medication' was ordered by the doctor, which is in violation of the treatment and pain management plan of CSP-Corcoran's Health Care Services... Plaintiff in turn questioned CSP-Corcoran's medical staff as to how to go about getting treatment for the pain and swelling he was experiencing, and to get medication to prevent any further infections from setting in on both surgery areas. And at that time plaintiff was advised that no medication was on order from Dr. Suesberry's office or otherwise. Dr. Suesberry's failure to proscribe medication, and further follow up medical treatment thus lead to further harm being done to plaintiff which caused not only the first keloid to return, due to not having proper medical treatment, but a second keloid begin to form due to delayed and denied medical treatment....
(ECF No. 17, pp. 4, 7.)
Plaintiff further alleged:
On April 30, 2003[, ] plaintiff was taken to Delano Regional Medical Center for a doctors visit with Dr. Suesberry to have stiches removed from his neck. Plaintiff asked Dr. Suesberry why he never ordered any pain medication, antibiotics, and medication to reduce swelling. His response was that medication should have been ordered the evening of the surgery, or the next morning. But he and his office failed to do so.'
(ECF No. 17, p. 7.)
Plaintiff also alleged:
On May 14, 2003[, ] plaintiff was once again... taken to Dr. Suesberry office at Delano Regional Medical Center for an appointment to have the stiches and gauge removed from the area on [his] head, behind [his] right ear. And at that time plaintiff once again asked Dr. Suesberry as to why no medication was ever ordered after the surgery for pain, and to prevent swelling and infections[.] Dr. Suesberry stated that you were suppose[d] to have received something for at [least] 10 days from April 24th until May 4th or 5th. Also, plaintiff asked why was my head gauge sewn into my skin behind my head so that it could never change because it has been given off a foul odor, as well as bleeding and it couldn't be changed? The medical staff at CSP-Corcoran advised plaintiff that they couldn't take out the gauge due to no order coming from Dr. Suesberry's office in regards to changing the gauge. So by that time infection had already begun to set in and spread in the area on plaintiff's head. In Dr. Suesberry reply, he stated that sometimes it takes time with these things, this just happens to be one of those times, and I'm sure everything will be just fine.'[¶] Plaintiff in turn advised Dr. Suesberry of the pain he was experiencing, in the area on his head, behind his right ear, and in his neck area. Also, plaintiff advised Dr. Suesberry about the swelling and foul odor fluid and blood leaking from both areas. Dr. Suesberry said he would order something for the pain and some ointment for the leaking and some antibiotics for the infections. But after checking with the CSP-Corcoran's medical staff plaintiff discovered that no medication was ever ordered by Dr. Suesberry nor by any of his staff or ...