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Flores v. Fitter

United States District Court, Central District of California

January 27, 2015

JOSUE FLORES, Plaintiff,
v.
J. FITTER, M.D., ET. AL., Defendants.

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

HON. KENLY KIYA KATO UNITED STATES MAGISTRATE JUDGE

On August 13, 2014, Plaintiff Josue Flores, an inmate at Richard J. Donovan Correctional Facility in San Diego, California, filed a pro se first amended complaint (“FAC”) pursuant to 42 U.S.C. § 1983. ECF Docket No. (“Dkt.”) 16. Although the case was originally filed in the United States District Court for the Eastern District of California, the case was transferred to this district on January 22, 2015. Dkt. 18. For the reasons stated below, the FAC is dismissed with leave to amend.[1]

I. ALLEGATIONS OF THE FAC

The FAC alleges Plaintiff’s right to medical care was violated by defendants Fitter, Hernandez, Wu, and Finander – all of whom are alleged to be doctors at the California State Prison in Lancaster, California (“CSP-Lancaster”). FAC at 2-3.

Plaintiff alleges he arrived at CSP-Lancaster on December 28, 2010 at which time he arrived at intake and spoke with defendant Hernandez. Id. at 3. Plaintiff informed defendant Hernandez about his “medical disability, ” consisting of multiple gun shot wounds to his legs resulting in “extreme pain” to his left leg and lower back. Id. Plaintiff informed defendant Hernandez his medical conditions required “the help of a cane, lower bunk chrono and special shoes.” Id. Plaintiff alleges defendant Hernandez told him “he would take care of it.” Id. at 4.

Following his initial intake, Plaintiff was placed in administrative segregation where he was put on a bottom bunk. Id. However, once Plaintiff was released to general population, he was placed on a top bunk. Id. Plaintiff, therefore, submitted a “medical slip” and was eventually seen by defendant Fitter. Id. at 4-5.

Plaintiff informed defendant Fitter he had “multiple gun shot wounds” to his legs and that his “leg gives out throughout the day” and “is real[ly] painful.” Id. at 5. Plaintiff further told him he had “extreme surgery (sic) to his left leg” and “lower back pain because [his] left leg is shorter then [his] right leg.” Id. Plaintiff informed defendant Fitter he had a bullet wedged between his pelvis and femur that causes “shots [of] pain” to his lower back when he sits. Id. Finally, Plaintiff told defendant Fitter he had a “prior lower bunk or lower tier chrono from Los Angeles County Jail.” Id. Plaintiff states defendant Fitter examined him by asking him to move his leg and to show him his leg. Id. Defendant Fitter concluded Plaintiff was in good physical health and had “nothing wrong” with him. Id.

Plaintiff subsequently submitted another medical request and was again seen by defendant Fitter. Id. Plaintiff claims he was again denied proper medical care and, therefore “wrote a medical 602HC Appeals form.” Id. at 5-6. On the day of Plaintiff’s review, he was again seen by defendant Fitter. Id. at 6. Plaintiff states he “told him about everything.” Id. Defendant Fitter informed Plaintiff he was in good physical health and there was nothing wrong with him. Defendant Fitter further informed Plaintiff his “chrono from Los Angeles County Jail does not matter” and that his pain was due to being overweight. Id.

Although the timing is unclear, Plaintiff further alleges he put a “CDCR 1824 accommodation request” in to defendant Finander, the chief medical officer. Id. Plaintiff alleges defendant Finander forwarded the form to defendant Fitter resulting in Plaintiff again being seen by defendant Fitter. Id. Plaintiff, once again, told defendant Fitter about his medical problems, and informed him that “climbing up and down the bunk is really putting a lot of pain and pressure [on his] lower back and legs.” Id. Defendant Fitter apparently took no action to address Plaintiff’s complaints.

A couple days after this meeting with defendant Fitter, Plaintiff put in another medical request and was seen by Dr. Marcelo. Id. at 7. Dr. Marcelo examined Plaintiff, including asking him to stand and running “a couple of test[s].” Id. at 7. Dr. Marcelo gave Plaintiff stronger pain medication and requested a lower bunk chrono, but the request was denied by defendant Finander. Id.

Plaintiff then filed another 602HC Appeals Form and was seen by defendant Wu. Id. He informed defendant Wu of his medical problems. Id. Defendant Wu examined Plaintiff “by sight only.” Id. Defendant Wu concluded Plaintiff was in good physical health and prescribed more pain medication. Id. at 7-8.

Plaintiff continued to put in medical requests and filed another 602HC Appeals Form. Id. at 8. He was again seen by defendant Fitter and again told he was in good physical health. Id. Plaintiff, thus, continued to put in medical requests until January 3, 2012, but was repeatedly told he was overweight, he was getting what he needed, and he was able to walk 100 yards without assistance. Id.

On January 25, 2012, Plaintiff left CSP-Lancaster and was transferred to the California State Prison in Corcoran, California (“CSP-Corcoran”). Id. at 9. The FAC details Plaintiff’s efforts to obtain medical care at CSP-Corcoran where he was apparently again denied a lower bunk chrono, although he was provided with pain medication. Id. at 9-12. Ultimately, on July 29, 2013, Plaintiff slipped and fell while trying to climb to his top bunk. Id. at 10-11. He landed on the left side of his pelvis and hit the left side of the back of his head suffering extreme pain. Id. at 11. Plaintiff was taken to Community Regional Medical Center in Fresno, California where tests, including x-rays, a CT-scan and a MRI were performed. Id. at 11-12. ...


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