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Blair v. Mendivil

United States District Court, E.D. California

November 22, 2017

PERRY C. BLAIR, Plaintiff,
D. MENDIVIL, et al., Defendants.


         Plaintiff Perry C. Blair is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         On August 1, 2017, in Perry C. Blair v. CDCR,, case number 1:14-cv-01156-LJO-SAB (PC), the Court granted Plaintiff's request to sever and file a new action regarding the allegations set forth in the fourth amended complaint. The Clerk of Court opened the instant prisoner civil rights action and filed the fourth amended complaint as the operative complaint. In that order, the Court expressed no opinion as to the merits of the claims presented in the complaint. ///



         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 on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A complaint must 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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.



         In the early morning of June 2, 2014, at approximately 5:30 a.m., Plaintiff awoke with an urge to relieve himself, as a result he stood up from his bunk walked to the toilet bowl urinated. After relieving himself, Plaintiff turned around and proceeded to walk back to his bunk and instantly he suffered from severe lower back and leg muscle spasms which caused hi leg to give out. Plaintiff stumbled backwards then fell, striking his tailbone on the rim of the steel toilet. Upon contact, Plaintiff's back made a loud cracking noise and Plaintiff screamed out in agony awaking his cellmate, Daniels. Daniels jumped out of his bunk and realized Plaintiff was leaning on the toiled in a sitting position.

         Daniels asked Plaintiff “are you o.k.?” and Plaintiff replied, “no I can't stand up - I think I just broke something .. it hurts… call man down.” Daniels picked Plaintiff up and carried him over to his bunk then laid Plaintiff on his stomach then walked to the door and yelled, “Man Down, Man Down!” until the tower officer John Doe No. 1 ordered Daniels to “Shut the fuck up!” Daniels informed the tower officer (John Doe No. 1) that Plaintiff was need of medical help. John Doe No. 1 replied, “I don't give a fuck, stop yelling or I'm going to send the floor staff to fuck your cell up and pepper spray ya'll.” Upon discovering what transpired, every prisoner in Plaintiff's section started beating on their door and simultaneously yelled, “Man Down!” Around an hour and a half later, the floor staff entered the section yelling, “shut the fuck up, ” as they approached Plaintiff's cell door. Daniels informed officer John Doe Nos. 2 and 3, “My celly fell and hit his back on the toilet I think he broke something.” John Doe No. 2 replied, “didn't I tell you to shut the fuck up. What you wan'a get sprayed up or something?” When John Doe Nos. 2 and 3 go to the door they stated, “we're not about to go get a stretcher and carry his clumsy ass to medical now stop yelling or else we're going to cell extract ya'll and pepper spray ya'll.” Finally, Defendant registered nurse D. Mendivil approached Plaintiff's cell door with John Doe No. 2 as they were passing out morning medications. Daniels informed Mendivil and John Doe No. 2 “my celly fell backwards into the toilet, his back popped and he can't stand up or walk he need[s] to go to medical.” Mendivil handed Daniels a medical request slip. Plaintiff contends that in an emergency situation the registered nurse (Mendivil) was required to inform the tower to hit the alarm to summon emergency medical assistance to respond with a stretcher in order to transport Plaintiff to the medical department. Daniels stated, “this is an urgent care situation-he needs immediate medical attention, he can't even stand up and he's in severe pain.” Mendivil ordered that Plaintiff fill out the medical slip and indicated it would be picked up at the noon medication pass, and the doctor would call Plaintiff the next day. Plaintiff yelled from the bunk where he was still laying on his stomach, “I can't wait til tomorrow this is an emergency I'm in severe pain and I think my shit is broke I can't stand up or walk - hit the alarm!” Mendivil handed John Doe No. 2 the medical sick call slip and John Doe No. 2 stated, “come get the form - Daniels reached to grab the slip and said, ” he need medical treatment now this shit can't wait.” John Doe No. 2 yelled, “get the hell off the door and mine your own business… Blair get your ass up and come talk to the RN yourself.” Plaintiff yelled, “I can't stand up - hit the fukin alarm.” On June 4, 2014, Plaintiff submitted an inmate appeal regarding the misconduct and lack of medical treatment.

         On June 29, 2014, Plaintiff submitted an inmate appeal regarding the lack of response to his previous grievance.

         On October 11, 2014, Plaintiff filed a Government claim against John Doe Nos. 1 through 5 and registered nurse D. Mendivil.




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