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Crew v. Department of Corrections and Rehabilitation

United States District Court, E.D. California

March 28, 2018

DAVID CREW, Plaintiff,



         I. Background

         Plaintiff David Crew (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's second amended complaint against Defendant Patel for deliberate indifference in violation of the Eighth Amendment arising from his intentional refusal or delay of Plaintiff's medical care related to the removal of staples from Plaintiff's stomach from a prior surgery. (ECF No. 24.)

         On June 9, 2017, Plaintiff filed a motion to file an emergency amended complaint. (ECF No. 30.) Defendant Patel filed his answer to the second amended complaint on June 12, 2017. (ECF No. 31.) Given that Defendant filed his answer after Plaintiff filed his motion, the Court directed Defendant to file an opposition or statement of non-opposition to the motion within twenty-one days. (ECF No. 34.) Defendant Patel timely filed an opposition on June 15, 2017. (ECF No. 35.)

         On June 29, 2017, Plaintiff filed a motion requesting an extension of time to respond to Defendant's Interrogatories together with a motion for a Court order demanding the prison to make legal copies for Plaintiff. (ECF No. 38.) Plaintiff also filed a “Motion to Grant Emergency Amendment Complaint and Motion to Grant Defendant a Trial.” (ECF No. 39.) It appears that Plaintiff intended this motion to be filed as a reply in support of his pending motion to file an emergency amended complaint. Plaintiff also asks the Court to grant Defendant's motion to go to trial. The Court notes that no such motion was filed by Defendant. Finally, Plaintiff filed a motion in which he purports to consent to the jurisdiction of a United States Magistrate Judge to conduct all further proceedings, but states that he does not understand the difference in judges and requests that the Court enlighten him as to what this means. (ECF No. 40.)

         On July 5, 2017, Plaintiff filed a motion to prevent or limit production of records, pursuant to Federal Rule of Civil Procedure 45(d)(3)(B), together with a motion to subpoena Defendant's misconduct reports and files. (ECF No. 41.)

         On August 7, 2017, Defendant filed a motion to compel Plaintiff's responses to Defendant's Special Interrogatories, Set One, and Requests for Production of Documents, Set One. (ECF No. 42.) On August 28, 2017, Plaintiff filed a motion to expel Defendant's motion of production of documents and special interrogatories, which appears to be an opposition to Defendant's motion to compel. (ECF No. 43.)

         On September 11, 2017, Defendant Patel filed a motion for summary judgment on the ground that Plaintiff failed to exhaust available administrative remedies.[1] (ECF No. 44.)

         On September 15, 2017, Plaintiff filed a motion for emergency extension of time and extended amended complaint. (ECF No. 45.) The motion appears to be related to Plaintiff's June 9, 2017 motion to file a third amended complaint.

         On February 2, 2018, Plaintiff filed a motion to subpoena his medical file and relevant documents under emergency circumstances, a motion to grant his motion for a deposition, a motion to subpoena Brian Hancock and medical records staff, and a motion for extension of the deadline to complete discovery. (ECF No. 49.) Defendant Patel filed an opposition on February 8, 2018. (ECF No. 50.)

         These motions are deemed submitted. Local Rule 230(1). The Court will first address the series of motions relating to Plaintiff's motion to file an amended complaint.

         II. Motion to File an Emergency Amended Complaint

         Plaintiff's motion to file an emergency amended complaint sets forth events occurring in May and June 2017, and seeks to add RN German as a named defendant and new claims against Dr. Patel. (ECF No. 30.)

         Plaintiff states that on May 3, 2017, he was sent to a private urologist in the city of Tehachapi to undergo a procedure for both kidneys which left him in extreme pain. On May 8, 2017, he was hospitalized at San Joaquin Community Hospital due to his continued pain and urinating blood. Plaintiff was informed that the two tubes in both of his kidneys should stop bleeding in a day or so. Plaintiff continued to urinate blood every day since May 3, 2017.

         Plaintiff notified RN German and she stated “It's no big deal. It's normal…” Plaintiff told RN German that something was wrong but she did nothing. Plaintiff was informed by RN German that although he was supposed to be seen by the urologist 14 days after May 3, 2017, Defendant Patel had cancelled his appointment. Plaintiff informed staff that Defendant Patel was not allowed to infringe on his medical care due to legal issues. Plaintiff states that he has yet to speak to a doctor about his situation. The doctor (MD Soa) that he spoke to had no knowledge of Plaintiff's surgery or his situation.

         On June 2, 2017, Plaintiff was sent to KVSP medical at 1:13 a.m. and was denied care. After several correctional officers witnessed Plaintiff urinate a lot of blood, he was denied treatment and was told that Defendant Patel said to send Plaintiff back to his cell. Plaintiff expressed to medical that something was wrong. After several hours Plaintiff was transported by Delano EMT to SJC Hospital. At SJCH, Plaintiff was informed by Dr. Kristopher L. Lyon that the tubes-stints inside his kidneys had caused an infection, they should have been removed weeks ago, and they needed to be removed ASAP. Several hours later, Plaintiff was discharged from SJCH with no notification. Plaintiff later found out that Defendant Patel recommended that the prison treat Plaintiff.

         Plaintiff alleges that it is the fault of Defendant Patel and RN German that his kidneys are infected and that he must undergo a major surgery. Plaintiff argues that RN German was aware that the stints in his kidneys were causing him severe pain and bleeding. RN German only argued that it was normal. Plaintiff contends that if RN German had looked into the situation and had Plaintiff properly checked, his kidneys would not be infected by the stints left inside his body. (ECF No. 30.)

         In his subsequent filings in support of his motion, Plaintiff includes additional allegations regarding events occurring up to August and September 2017. (ECF No. 45.) Plaintiff states that since the filing of his motion, he has undergone 3 surgeries and been seen by 2 separate specialists to determine how Plaintiff has developed additional kidney stones in such a short time, or whether all of his kidney stones were never removed, or the possibility of a bigger kidney issue. Plaintiff also contends that he has been made to endure a pain equivalent to child birth on a daily basis, with only Tylenol to take for pain. (Id.)

         Essentially, Plaintiff alleges that he continues to receive inadequate medical treatment from Defendant Patel, as well as RN German, with respect to ongoing issues with kidney stones and subsequent infections.

         As Plaintiff was informed in the Court's June 1, 2017 order denying his prior motion to amend the complaint, a motion alleging facts arising after the filing of the original complaint will be construed as a motion to file a ...

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