Randolph v. Lozovoy

         FINDINGS 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 DEADLINE

         I. BACKGROUND

         Colin 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.).

         Plaintiff filed an amended complaint on February 6, 2017, (ECF No. 11), which is now before this Court for screening.

         Plaintiff 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 yard.

         For the 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 medical negligence.

         II. SCREENING REQUIREMENT

         The 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).

         A 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.

         Pleadings 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 Iqbal).

         III. SUMMARY OF PLAINTIFF’S COMPLAINT

         On or 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.

         On or 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.

         Defendant 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 ...