United States District Court, E.D. California
COLIN M. RANDOLPH, Plaintiff,
R. LOZOVOY, et al., Defendants.
AND RECOMMENDATIONS, RECOMMENDING THAT THE CASE PROCEED
AGAINST DEFENDANT LOZOVOY ON A CLAIM OF DELIBERATE
INDIFFERENCE TO SERIOUS MEDICAL NEEDS IN VIOLATION OF THE
EIGHTH AMENDMENT AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE
DISMISSED WITH PREJUDICE (ECF NO. 11) TWENTY DAY
M. Randolph (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed a complaint on October 11, 2016. (ECF No. 1).
The Court screened Plaintiff’s complaint and found that
it stated a claim against Defendant Lozovoy for deliberate
indifference to serious medical needs and failed to state any
other claims. (ECF No. 10). Plaintiff was given an
opportunity to proceed on the single claim, file an amended
complaint, or stand on his complaint subject to findings and
recommendations to the District Judge consistent with the
screening order. (Id.).
filed an amended complaint on February 6, 2017, (ECF No. 11),
which is now before this Court for screening.
alleges that he injured his knee on March 1, 2015, and did
not receive adequate accommodations until March 20, 2015,
when he received a lower bunk chrono, and March 27, 2015,
when he received a wheelchair for showers, visiting, and
reasons described in the Court’s prior screening order
and again below, the Court recommends allowing a claim to
proceed against Defendant Lozovoy based on the allegations
that Defendant Lozovoy did not evaluate Plaintiff’s
injury and allegedly told Plaintiff to “figure it
out.” The Court recommends dismissing all other claims
and defendants for failure to plead facts establishing
deliberate indifference to serious medical needs, rather than
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 “frivolous
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). “Notwithstanding 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).
complaint is required to contain “a 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 “[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 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Id.
(quoting Twombly, 550 U.S. at 570). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. While a
plaintiff’s allegations are taken as true, courts
“are 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). Additionally, a plaintiff’s
legal conclusions are not accepted as true. Iqbal,
556 U.S. at 678.
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
SUMMARY OF PLAINTIFF’S COMPLAINT
about March 1, 2015, Plaintiff injured his left knee coming
down from his assigned upper bunk “where no safely
designed way to do so existed or was clearly posted in or out
of cell on how to do so.” Plaintiff submitted a medical
sick call slip requesting medical attention.
about March 3, 2015, Defendant correctional officer (C/O)
Buyard arrived at Plaintiff’s cell with a wheelchair
and pushed Plaintiff to the doctor’s office. While at
the doctor’s office, Plaintiff met with Defendant nurse
practitioner Lozovoy. Plaintiff described his symptoms.
Defendant Lozovoy did not evaluate Plaintiff’s injury.
Plaintiff asked him for a temporary lower bunk accommodation
and wheelchair access for showers as well as adequate pain
medication and an X-ray. Defendant Lozovoy denied all the
requests, and stated that he had removed Plaintiff’s
lower bunk accommodation for exercising and since Plaintiff
has gout, Plaintiff’s joints are prone to flare ups
from any trauma. Defendant Lozovoy also told Plaintiff that
Plaintiff was already receiving medication for gout and pain,
and that Plaintiff had to figure out how to get off his bunk
without stressing his joints. When Plaintiff protested that
there was no way to get out of the upper bunk without trauma
to the joints, Defendant Lozovoy told Plaintiff that other
inmates are not complaining and that Plaintiff needed to
figure it out.
Buyard returned Plaintiff to his cell. Plaintiff told
Defendant Buyard that he could not get onto or off his bed
without assistance, and that doing so caused unnecessary and
excruciating pain. He also indicated that he could not make
it to the toilet or shower. Defendant Buyard dismissed
Plaintiff’s complaints and said he would only be ...