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Payan v. Tate

United States District Court, E.D. California

October 15, 2014

MICHAEL J. PAYAN, Plaintiff,
v.
H. TATE, et al., Defendants.

FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION TO DISMISS

DENNIS L. BECK, Magistrate Judge.

Plaintiff Michael J. Payan ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on May 28, 2013. This action is proceeding on the following cognizable claims: (1) retaliation in violation of the First Amendment by Defendants Bingamon, Tate and Vu; and (2) deliberate indifference to a serious medical need in violation of the Eighth Amendment against Defendants Bingamon, Tate, Vu, Sheisha and Joaquin.

On April 16, 2014, Defendants filed a motion to dismiss the Eighth Amendment claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff filed his opposition on June 2, 2014, and Defendants filed their reply on June 5, 2014. The motion is deemed submitted pursuant to Local Rule 230(1).

A. ALLEGATIONS IN COMPLAINT

Plaintiff is currently incarcerated at Pelican Bay State Prison. The events complained of occurred at California Correctional Institution, where the events at issue occurred.

Plaintiff alleges that he lost balance and fell in the shower on July 21, 2010.

Plaintiff was seen by Defendant Bingamon on August 11, 2010. Plaintiff told Defendant Bingamon that he felt a painful tear in his left shoulder when he fell, and that he could not use his left arm or sleep because of pain. Defendant Bingamon told Plaintiff that he had a torn tendon in his rotator cuff and that he would order an x-ray. Plaintiff told him that prior doctors have said that x-rays were not sufficient to detect tendon or muscle injuries, and he asked for an MRI. Defendant Bingamon got upset and told Plaintiff that he was careless, and he was lucky he was getting an x-ray.

Plaintiff saw Defendant Bingamon again on September 29, 2010. He told Plaintiff that the x-ray did not pick up any tears in the tendon. Defendant Bingamon indicated that he would order a steroid injection and prescribe Gabapentin, to which Plaintiff objected. Defendant Bingamon told Plaintiff that if he did not consent to the injection and Gabapentin, he would terminate the appointment and Plaintiff would forfeit all medical attention. Plaintiff said that he did not want to forfeit medical care and Defendant Bingamon told him that he should not make a habit of complaining about medical care.

Plaintiff took Gabapentin, which made him feel sick and did not relieve the pain.

Plaintiff returned to Defendant Bingamon on October 20, 2010. Defendant Bingamon told Plaintiff that because of his complaints, his supervisor, Defendant Tate, got upset and discontinued Gabapentin because it was not for torn tendons. Defendant Bingamon told Plaintiff that he would be scheduled for an injection and physical therapy, and if there was no improvement, an MRI. Defendant Tate confirmed this plan and gave Plaintiff an injection. Defendant Tate told Plaintiff that he was scheduled for an MRI to get a proper diagnosis. Plaintiff asked how Defendant Tate knew where to locate the injection, but he refused to answer and sent Plaintiff back to his cell.

On November 2, 2010, Plaintiff returned to Defendant Bingamon and reported that he could not use his left arm and that he was in extreme pain. Plaintiff said that the injection did not work and requested an MRI. Defendant Bingamon became angry and told Plaintiff that he wasn't going to treat Plaintiff because of his complaints.

On or around December 2, 2010, Plaintiff saw Defendant Tate. Defendant Tate told Plaintiff that he hated whiners and inmates who told doctors what to do, and that an MRI wasn't worth the five dollars that it would cost Plaintiff. Defendant Tate told Plaintiff that if he continued to complain, he would cancel the MRI.

On December 15, 2010, Plaintiff filed a medical care grievance regarding Defendant Tate's medical treatment and threats. On January 4, 2011, Defendant Sheisha, the Chief Physician, interviewed Plaintiff at the Second Level. Plaintiff reiterated his complaints about Defendant Tate and told Defendant Sheisha that he believed he had a torn tendon. Defendant Sheisha told Plaintiff that he wasn't the first one to complaint about Defendant Tate, but that the medical staff doesn't get paid enough to look into petty matters. Defendant Sheisha turned the grievance into a staff complaint and ended the interview. In the Second Level response, Defendant Joaquin, the Chief Medical Officer, only reiterated part of the interview and implied that because an inquiry was done, the inquiry partially granted the complaint. Plaintiff believes that Defendants Sheisha and Joaquin deliberately turned Plaintiff's grievance into a staff complaint to make the complaint confidential and to allow for the continuation of improper treatment.

After Plaintiff filed his grievance against Defendant Tate, Defendant Tate recommended that the MRI be disapproved.

On January 5, 2011, Defendant Sheisha gave Plaintiff a second steroid injection. Plaintiff told Defendant Sheisha that the previous injection did not work and that the pain was worsening. Plaintiff said that he did not consent to the injection because it was being performed without an MRI. Defendant Sheisha told Plaintiff that if he did not consent, he would be charged with interfering with medical staff orders and would not receive any treatment at all. Plaintiff consented to the injection out of fear.

Plaintiff did not experience any relief after the second injection.

On March 9, 2011, Plaintiff saw Defendant Bingamon and reported that his shoulder was in constant pain. Defendant Bingamon told Plaintiff that he had upset his supervisor, Defendant Tate, because of the grievance, and that he wasn't going to ...


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