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Martin v. Stainer

United States District Court, C.D. California

June 27, 2017

BEN ORLANDO MARTIN, Plaintiff,
v.
M.D. STAINER et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART WITH LEAVE TO AMEND

          ALKA SAGAR United States Magistrate Judge.

         INTRODUCTION

         On November 17, 2016, Plaintiff Ben Orlando Martin, an inmate at the California State Prison, Los Angeles County (“CSP-LAC”), proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983. (Docket Entry No. 1). On January 18, 2017, the Court screened and dismissed the Complaint with leave to amend as prescribed by 28 U.S.C. § 1915A(b).[1] (Docket Entry No. 7). On March 24, 2017, Plaintiff filed his First Amended Complaint (“FAC”) (Docket Entry No. 11).

         The Court has screened the FAC as prescribed by 28 U.S.C. § 1915A. For the reasons discussed below, the Court DISMISSES the FAC-IN-PART WITH LEAVE TO AMEND.

         ALLEGATIONS OF THE COMPLAINT

         The FAC alleges claims for unlawful retaliation and deliberate indifference to serious medical needs as well as potential claims for failure to protect and violation of state prison procedures. (FAC at 8-9).[2] The FAC names three defendants in their individual capacity: “medical health care official D.O.” Kang Hak Lee, “medical health care official registered nurse” K. Johnson, and CSP-LAC Warden Debbie Asuncion. (Id. at 3). The FAC seeks $250, 000 in compensatory damages, $250, 000 in punitive damages, (id. at 33), and an injunction against Asuncion, the California Department of Corrections and Rehabilitation, and CSP-LAC's health care officials prohibiting further retaliation and mandating Plaintiff's medical treatment at no cost, placing Plaintiff in a single-inmate cell, and transferring Plaintiff to an alternative correctional facility, (id. at 31-32).

         A. Lee And Johnson

         1. January 14, 2016

         On January 14, 2016, Plaintiff, a former prisoner at High Desert State Prison, was assisted to the pill call counter by an “(ADA) assistant.” (Id. at 14). Plaintiff asked the nurse when he would receive a wheelchair and explained that extreme pain and swelling prevented him from using a walker to ambulate. (Id.). Defendant Lee approached the counter “in a fit of rage” and started “screaming out Plaintiff[']s medical condition, including the treatment Plaintiff is under and medications currently being administered.” (Id.). Lee stated that he was aware that Plaintiff, a former inmate at High Desert State Prison, had been a part of the investigation into High Desert's medical practices. (Id. at 15). Lee accused Plaintiff of not requiring a wheelchair, stated that he did not want to see Plaintiff in another wheelchair, and threatened to fire any prison assistant who transported Plaintiff in a wheelchair. (Id.). Lee also told Plaintiff to “forget about” his pain management medication because Plaintiff was a whistle blower and that his future medical requests would “get lost in the trash.” (Id. at 16).

         One day prior to this incident, Lee also “scream[ed]” out Plaintiff's privileged medical information. (Id. at 18). Johnson stood behind Lee “laughing and making light of a situation that[']s clearly in violation of Plaintiff['s] (HIPAA) rights.” (Id.).

         2. January 29, 2016

         On January 29, 2016, Plaintiff's foot and leg were swollen to one-third larger than their normal size. (Id.). The swelling was due to Plaintiff's use of his walker “which was causing the swelling in Plaintiff[']s entire right side because of the excess walking.” (Id. at 22). Plaintiff showed the swelling to Lee and expressed concern that using a walker was making the swelling worse. (Id. at 18). Lee informed Plaintiff that he would treat Plaintiff after he saw two other patients. (Id.).

         After Lee had finished with the two patients and other patients began appearing, Plaintiff asked Johnson when Lee would see him. (Id. at 19). Plaintiff informed Johnson that he was in tremendous pain and the swelling was getting worse. (Id.). Johnson informed Plaintiff that it was not his turn and made a joke about Plaintiff's pain. (Id.). After waiting two hours and twenty minutes, Plaintiff again asked Johnson if Lee would treat him because Plaintiff was in tremendous pain. (Id.). Johnson informed Plaintiff that Lee was going home and Plaintiff should “suck it up and act like a man.” (Id.). Johnson laughed and gave Lee and other nurses “high five[s].” (Id.).

         Before Plaintiff left the medical yard, Johnson again denied Plaintiff's request to see Lee and for pain medication. (Id.). Johnson, like Lee, observed the swelling in Plaintiff's foot and leg, but nonetheless denied him treatment. (Id. at 20, 18).

         Plaintiff alleges that Lee's and Johnson's failure to treat him “resulted in further significant injury.” (Id. at 21). Lee's and Johnson's actions “emphasized physical harm, or the risk of it.” (Id. (emphasis added)). The “unsafe conditions” have “‘pose[d] an unreasonable risk of serious damage to Plaintiff[']s future health' and violates [the] Eighth Amendment even if the damages ha[ve] not yet occurred.” (Id. (emphasis added)). Plaintiff also alleges that Lee's and Johnson's actions resulted in “unnecessary and wanton infliction of pain.” (Id.).

         After Lee and Johnson denied him treatment, Plaintiff went on a five-day hunger strike. (Id. at 23). The hunger strike ended after five days when a prison lieutenant provided Plaintiff with a temporary wheelchair. (Id.). Plaintiff used this temporary wheelchair until he was permanently assigned a wheelchair on February 25, 2016. (Id.). Lee altered medical documentation to indicate that it was he who had provided Plaintiff with the wheelchair when it actually was the lieutenant who had provided Plaintiff with the wheelchair. (Id.).

         3. April 15, 2016

         On April 15, 2016, Lee called Plaintiff into his office to discuss Plaintiff's chronic obstructive pulmonary disorder. (Id.). Plaintiff asked Lee when Plaintiff would receive surgery for his hip. (Id.). Lee indicated that he would not recommend surgery “because it cost[s] to[o] much, ” and Plaintiff was “not worth it.” (Id.). Lee explained that Plaintiff was an informant and Lee would teach Plaintiff a “hard lesson” by ensuring that Plaintiff did not receive his surgery. (Id.). Plaintiff nonetheless received his corrective surgery, a right hip arthroscopy with labral repair, on August 17, 2016. (Id. at 23-24).

         Since his surgery, Plaintiff has not received one session of physical therapy. (Id. at 24). For at least 78 days, Plaintiff has remained confined to a wheelchair with no medical treatment or efforts to restore Plaintiff's ability to walk. (Id.).

         B. Asuncion

         Asuncion failed to get medical care for Plaintiff despite knowing that Plaintiff had filed requests for medical care that were directed to Asuncion. (Id. at 30). Asuncion also knew that Plaintiff had gone on a hunger strike. (Id.).

         Further, Plaintiff has been “physically assaulted and threatened with violence more times than whats outlined in the Plaintiff[']s complaint.” (Id.). Plaintiff “feels his life is in imminent danger of serious physical injury, because Warden Debbie Asuncion[']s continuous actions of retaliation, and putting Plaintiff in situations where the alternative to violence is more violence committed against the Plaintiff.” (Id.).

         Plaintiff is confined to a wheelchair and cannot defend himself against attacks by the administration or its inmates. (Id.). Plaintiff is ‚Äúcompletely vulnerable against the ...


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