United States District Court, E.D. California
PERRY C. BLAIR, Plaintiff,
D. MENDIVIL, et al., Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION
PROCEED ON PLAINTIFF'S CLAIM OF DELIBERATE INDIFFERENCE
AGAINST CERTAIN DEFENDANTS AND DISMISSAL OF ALL OTHER CLAIMS
AND DEFENDANTS (ECF NO. 2)
Perry C. Blair is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
August 1, 2017, in Perry C. Blair v. CDCR, et.al.,
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
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.
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.
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.
29, 2014, Plaintiff submitted an inmate appeal regarding the
lack of response to his previous grievance.
October 11, 2014, Plaintiff filed a Government claim against
John Doe Nos. 1 through 5 and registered nurse D. Mendivil.