United States District Court, C.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART WITH
LEAVE TO AMEND
SAGAR United States Magistrate Judge.
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). (Docket Entry No. 7). On March 24, 2017,
Plaintiff filed his First Amended Complaint
(“FAC”) (Docket Entry No. 11).
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.
OF THE COMPLAINT
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). 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).
Lee And Johnson
January 14, 2016
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
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.).
January 29, 2016
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
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.).
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).
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.”
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.).
April 15, 2016
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).
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.).
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.
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.).
is confined to a wheelchair and cannot defend himself against
attacks by the administration or its inmates. (Id.).
Plaintiff is “completely vulnerable against the